Bkggb also known as Nggb v. Bknd
Read the full judgment text of FCMC 1410/2019 on BabelCite. This Family Court judgment was delivered on 24 May 2021 before Deputy District Judge Thelma Kwan.
Child relocation – custody – access – best interests of the child – Guardianship of Minors Ordinance (Cap. 13) – Matrimonial Causes Ordinance (Cap. 179) – police search – child pornography allegations – book collection – supervised access – relocation to UK – joint custody – no order as to costs – Mother's relocation application granted as genuine and practical – Joint custody ordered despite strained relationship – Supervised access maintained due to risk concerns regarding police search and book collection – Father to obtain mirror order in UK
Legal issues: Relocation Application · Custody Order · Access Arrangement
Outcome: Relocation granted; Joint Custody awarded; Supervised Access ordered; No order as to costs.
Cites 8 cases
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FCMC 1410/2019 [2021] HKFC 100 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 1410 OF 2019 ________________________ BETWEEN
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________________________ J U D G M E N T ________________________ Introduction 1.This is a trial concerning the Petitioner Mother’s Summons dated 20 December 2019 (the “Relocation Application”) for the permanent removal for relocation of the of two daughters of the family, A, born in October 2015 now age 5, and O, born in July 2018, now age 2 (together the “Daughters”). Arising from this Relocation Application, custody and access issues shall fall to be determined. 2.For the purpose of this Judgment, I shall refer to the Petitioner and the Respondent as Mother and Father respectively. Background 3.The Father is now aged 66, and the Mother is 39. Both are British born and raised, Mother is of Chinese origin. 4.They met in the UK in 2011. At that time, the Father was divorced with two adult sons from his previous marriage, the Mother was just in the process of divorcing her then husband. 5.The parties came to HK in November 2011. Father was then “semi-retired”, and Mother was intending to pursue her career in Hong Kong, she worked in the marketing role of a law firm here. The Father has no permanent residence status in Hong Kong, and is on a dependant visa on the Mother at the time of trial. 6.Father owned a real estate / property letting business in the UK, he alleged that he had passed the business onto his son from his previous marriage in around May 2019 shortly after the Mother’s Petition; and he also owns a real estate portfolio of his own. 7.The parties got married in Hong Kong in June 2014, the Daughters were born in Hong Kong to this union. 8.The parties’ relationship deteriorated soon after A was born, and Mother petitioned for divorce on grounds of unreasonable behaviour in February 2019. 9.Following the Petition, Father stopped paying his contribution to maintenance that he had previously provided. The Mother applied for MPS on 3 September 2019, DDJ D To made an order on 10 September 2019 for the Father to pay interim maintenance of $50,000. 10.Mother then lodged this Relocation Application in December 2019, which was filed on 2 January 2020. 11.Mother has an extended family in the UK and flew back often with the Daughters for family reunion. She left her job in Feb 2020, took the Daughters to the UK, and subsequently sought leave to remain there due to the COVID pandemic. On direction of the Court, she returned to Hong Kong in late June 2020. The Parties respective current positions 12.As at the time of trial, Mother and the Daughters were staying with friends and residing on Lantau Island. A attends school nearby. 13.During the course of this divorce proceedings, the Father has met a woman and is now living with her and her child. He also appeared to have found a job as the director of operations at a seminary in HK, which is an affiliate of the church which he is attending; he is also working as a brand ambassador of X Limited, an online shopping business. Neither of these are paying jobs. In his affidavit, he has also said:
14.From the making of the interim MPS Order up to the time of trial, the Father had not paid any maintenance to the Wife despite the MPS Order made on 10 September 2019. This has clearly put the Mother in financial hardship as the proceedings ensued and she stopped working in February 2020. Looking at the evidence before the Court, it is clear that Father has the ability to pay, but he blamed his failure upon the undertaking he has given in May 2019 as a result of which he claimed he was not allowed to access his assets in order to meet the maintenance payment; this is notwithstanding that according to the undertaking, he could have sought the Mother’s written consent or an Order of the Court to access his funds. It was subsequently alleged by the Mother that he did in fact breach this undertaking twice, first by transferring his business to his son shortly after giving the undertaking; and on the second occasion he accessed £150,000 from his pension, that amount was used by the Father to repay loans from his sons, debts to his company, cover bank loans; but none of which were to pay the Mother for the care or interests of the Daughters. 15.As this is not a hearing on the financial claims between the parties, I will not dwell on the details of these allegations, except that this has served as a backdrop to the Mother’s Relocation Application, as the lack of financial support from the Father formed one of the bases of her Relocation Application; and is indicative of the Father’s litigation conduct. 16.After the trial had finished, the Mother’s solicitors received £182,154.68 on 20 February 2021 from the refund of deposit after rescission of a property purchase. Pursuant to an Order of DDJ S Wong dated 12 October 2020, part of this fund was converted to Hong Kong dollars, $850,000 was transferred to the Mother to settle the outstanding maintenance for 17 months, and the balance was kept in the solicitors’ account on escrow to pay out maintenance for the months going forward. This Mother’s Application and Open Proposals in brief 17.Mother’s Relocation Application is for return to the UK. 18.It is the Mother’s case that it was never the intention of the parties to stay in Hong Kong forever. According to her evidence, it was intended that they would return to UK at some time where the Father has his successful businesses, their self-owned home, and extended families on both sides. Father has two real properties available for self-use, one called the L House, and another place at K property. 19.The Mother is asking to return to the UK with the Daughters. She asks for their sole custody. There is no dispute as to care and control with the Mother, but she is asking for Father’s access to them to be supervised. 20.The Mother’s plan is to move back to the maternal grandparents’ home in Ascot. There she would have the support of her parents in looking after the Daughters; in particular, her mother is a certified professional child-minder and has experience in dealing with young children. As the Daughters have spent much time with the Mother’s extended family (maternal grandparents, and Mother’s siblings and their families), they are returning to family members whom they know well. Mother also hope to find work in order to gain some financial independence in due course. 21.She has also found schools for the Daughters. A has attended the L School from February to June 2020 briefly when they were in the UK during the pandemic, L School is reputedly one of the best schools in the area. It is intended that she can return to this school; while it is competitive to get in, she did secure a place for A up until January 2021, it is not clear whether this place is still available now. O is to attend a nursery P, at Ascot, she has registered and has been offered a place. Both schools are close to the maternal grandparents’ home, and merely 5-8 minutes’ drive away. 22.The Mother offered video access with the Father 3 times a week, with extra time on special days: Father’s birthday, Father’s Day, Christmas and birthdays of the Daughters. If the Father visits the UK in person, she has offered varying 3 - 5 days of day access to the Father depending on how long he intends to be in the UK, but asks for at least 4 weeks prior notice. She also offered to return to Hong Kong with the Daughters annually for 7 - 10 days, subject to costs of the trip (travel, accommodation, and supervision) to be paid by the Father. 23.For reasons which will be elaborated later, the Mother asks for supervised access. If relocation is granted, she asks for supervised access by an appropriate independent professional to accompany the Daughters during access when the Father is in the UK. 24.If relocation is not granted, the Mother asks for an upward variation of the maintenance, including for rental payment and specific terms of supervised access for weekday and weekends. The Father’s Opposition and his Open Proposal in brief 25.Father denied the Mother’s position that they never intended to stay in Hong Kong in the long term. He said that they both did not like the UK, and thought Hong Kong a safer place for the children. That said, he said in his affidavit that:
26.The Father, during a direction hearing on 10 September 2019, has indicated that he agreed to the relocation, per the official transcript of that hearing, he said:
27.In the Updated Social investigation report dated November 2020, regarding the Father’s views of the relocation, the SWO said that:
28.He has since changed his mind. In his counsel’s opening submission, Father’s position is put forward as follows:
29.By his counsel’s closing submission, it has changed again:
30.He also disputes the Mother’s application for sole custody; and asks for joint custody and unsupervised access. 31.Father’s open proposal repeatedly criticized the mother’s litigation tactics, where he accused her of making a report to the UK police in October 2019 based on her wrongful allegations against him. He also accused the Mother of her obstructive attitude to his access. 32.If relocation is granted, he asks for 8 consecutive days’ day access with not more than 3 days prior notice; which access to take place primarily at the Father’ residence at L House in the UK, but that he must not be restricted from taking the Daughters to any place he wishes. He asks for staying access with the Daughters no later than when O turns 5 in 2023. 33.There were two events that took up a large part of the oral evidence at trial, I will first turn to a brief description of the events, one is a police search of the parties’ former matrimonial home in August 2018, and the other one is about the Father’s book collection. The Police search 34.The police search took place at the former matrimonial home on 15 August 2018 (the “Police search”), this was shortly after O’s birth in July. It does not appear to be in dispute that a group of police officers attended the parties’ residence and conducted search inside the apartment of at least the Father’s computer and phone. 35.Thereafter the versions diverged. 36.Mother claimed that 10 police officers came with a search warrant to investigate Father in relation to child pornography; within 24 hours after the police left, the Mother found that the Father had destroyed his computer by smashing it with a hammer. This left the Mother extremely worried, wondered what Father has downloaded from the internet, and felt that her world has been “turned upside down”. During the divorce proceedings, Mother attempted to find out whether the police investigation was still on-going but she was prevented due to data protection regulations. 37.The Father denied there were as many as 10 police officers, he said in Court there were about 6 to 7 of them; he denied there was a search warrant and said that nothing was found on his computer or his phone, and maintained that there is no evidence that the investigation is ongoing. He said that after the police left, the parties went to a shopping mall where a new laptop was purchased and paid for by the Mother. He alleged that the Mother assisted him in transferring the computer data from the old one to the new one. He also claimed that the destruction of the hard disk of the computer was done after discussion with the Mother, and the hard disk was admittedly destroyed for fear of the police having planted a bugging device into the computer. 38.Father produced a letter from his criminal lawyers C Lawyers (“C Lawyers”) which purported to state after investigation was made with various units of the Police, that “no case was found”. The Book Collection 39.On 18 July 2019, when the Mother was going through her emails, she found an attachment with book titles of the Father’s book collection (the “Book Collection”) contained in an email from the Father, sent to her previously in March 2018, asking her to assist him to download it. The list was of almost 20,000 book titles which covers literature of a sexual nature, of which around 650+ are suggestive of sexual content with regard to children. 40.I adopt below the excerpts of the list of titles collated by the Mother’s counsel in her closing submission, showing what she stated as only some of the “worrying examples”:
41.The Father’s case as presented by his counsel in her opening submission summarized his stance:
42.The Father claimed that he had given his collection to his son who had on-sold the whole collection. 43.Mother did acknowledge that she had knowledge of these books in the Father’s residence in the UK, that she knew he was a collector of “erotica materials”, but assumed they were playboy magazines and similar genre. Under cross examination, she maintained these were on the bookshelves at the Father’s UK residence at L House, but she did not look at what was on the shelves. She therefore did not know until July 2019 that the titles contained materials involving “paedophilic, child pornography, and incest”. 44.Mother also produced as evidence in court, photographs of what appeared to be a room that looks like a library, with open shelves and books on open display. The Father said in Court that this was a converted bedroom with fitted shelves for books, and would be locked if children or guests came. The Father’s counsel submitted that Mother had full access to and knowledge of it, and had downplayed her knowledge of the Book Collection. 45.Mother’s solicitors have also produced covers of the books in the Book Collection, the covers that were attached to the letter from the Mother’s solicitors were quite disturbingly explicit. Father claimed that these covers did not come from his collection as Mother “had no access to the books”. It had then turn out that the books’ covers were in fact those from books of the same titles found on the internet. 46.These two events have clearly caused the Mother a lot of grief, they were the bone of contention of the issues at trial, and were the main reasons giving rise to the Mother’s application for supervised access. Before oral evidence began and upon clarification questions from this Court, the Mother confirmed that she was concerned with the risk of abuse, and not complaining about actual abuse having taken place. Erotica Art at home 47.The Mother had also complained that the Father had refused to remove some erotica art objects and artwork at home as she did not consider them appropriate for a home with children. 48.Father had said that some of the artwork was picked by the Mother (which was denied), but he had admitted to having unilaterally hung such artwork on the wall of their study to which A had access. He was dismissive on cross examination, and said it was “like wallpaper”. The Clubhouse incident 49.In around July 2019, after the May 2019 Order which gave the Father the initial unsupervised access with A at the former matrimonial home clubhouse, the Mother reported that Father had taken A swimming (something he had never taken interest in doing before the divorce), and had asked A to undress in front of him. She alleged that since A told her about this incident, A had been “having nightmares and feeling distressed”. The Father did not deny this incident, and even said via his solicitors’ letter that “purely to avoid having argument with your client in front of A, our client had before your client arrived, told A to change back into her play clothes.” This incident had led to numerous exchange of correspondences between the parties. The Bot Bot incident 50.Sometime in August 2019, the Mother reported that A woke up crying at 5 am from a nightmare, and said the Father had touched her front “bot bot”, meaning the front of her bottom. Mother reported this incident to the social welfare officer Ms L, who then referred the case to the Special investigation Team on Child Protection. 51.The SIR which came out on 27 August 2019 stated:
Other Access Issues 52.In the initial Order relating to access made in May 2019 by DDJ D To, the access to A was defined but unsupervised; as for O, because she was still of a tender age, the Father’s access to her was to be in the presence of the Mother or the domestic helper. 53.In September 2019, when the Mother addressed the Court on the concerns she had for the Daughters, exacerbated by the discovery of the titles of the Book Collection, the Clubhouse incident and the Bot Bot incident, the Access Order for the Father was adjusted to a supervised one in the presence of the Mother, the maternal grandmother, or the helper, “if the Mother deems necessary”. 54.The Father’s case is that the access is supervised only because of the Mother’s allegation about him, based “solely on the potential risk of harm from his previous ownership of books on sexology”. He also relied on the SIRs, which had found nothing of concern and as the relationship with the Daughters are found to be “warm and loving”, there is therefore “no evidence of the abuse that the Mother is alleging”. 55.After the Mother’s return from the UK in June 2020, followed by a CDR hearing in July 2020, there were discussion between the parties as to who would supervise the Father’s access. This led to the Father’s unilateral hiring of his own professional nanny. 56.Father complained that Mother would still attend these access times, staying nearby, taking photos, bringing her friends along, and appointing her own supervisor / nanny to the access. The Father is therefore of the view that he is unable to exercise proper access to the children without interference from Mother. 57.On the other hand, Mother’s case is that she distrusted the nanny that the Father has engaged, and complained about her inadequate performance. She said that the nanny had left the Daughters unattended, and that she was focused on taking pictures of the Daughters with the Father. She attended the access out of concern, and found out that Father had left the designated area where the access was supposed to take place, and this nanny did nothing to prevent him. 58.Thereafter followed a huge number of inter-solicitors’ correspondences relating to access time, location, appointment of supervision, allegations of what should or should not have taken place during access, leading to various interlocutory hearings. Social Investigation Reports (“SIR”) 59.There are two social investigation reports prepared under the divorce proceedings, and one international social investigation report called for in the Relocation Application, all the officers who prepared these reports gave evidence at trial. First SIR dated 27 August 2019 60.The first report was prepared to address the issues on custody and access, and was done prior to the Mother’s Relocation Application. It reported the interaction between Father and A as “natural and spontaneous”. 61.As cited above, this first SIR was finalized shortly after the Mother informed the SWO of A’s Bot Bot incident, which reported that the incident did not amount to sexual abuse as assessed by the Special Investigation Unit. 62.The SWO stated that her recommendations had taken into regard the Mother’s concerns but have recommended joint custody to promote co-parenting. Her recommendations also included care and control of the Daughters to the Mother and defined access with supervision if Mother deems necessary. Second SIR dated 17 November 2020 63.This updated SIR was prepared by a different SWO. This report is made in the context of the Mother’s Relocation Application, and is important in revealing certain observations
64.The Report reported “no irregularities or abnormal behaviours … and no cues suggesting or indicating that the father had been or would be a risk to the Children”. It described relationship between the Mother and the Daughters as “warm, intimate and loving”, and that with the Father being “affectionate and loving”. 65.The SWO recommended joint custody. And with regard to access:
66.With regard to the Relocation Application, the SWO was supportive:
International Social Investigation Report (“ISIR”) dated 16 October 2020 67.The purpose of the ISIR is clearly stated as “to provide the detailed observation of the living condition and environment of the family accommodation in Ascot UK, as well as various aspects of the Mother’s parenting capacity to assist the Family Court and relevant social -- authority in Hong Kong to determine the approval of the permanent removal application and the conditions of the removal including the future access arrangement.” 68.This International Social Worker (“Ms T”) received her instructions to prepare this report, met with the Mother’s parents on 28 August 2020 and “[carried] out a home inventory and local resources checks”. But as Mother and Children had returned to Hong Kong, Ms T conducted a virtual interview with the Mother via Skype video call on 9 October 2020, and subsequently communicated via phone calls and emails. Ms T did not interview the Father, when challenged under cross examination (via Video link), she stated that this was because she was not asked to interview the Father. 69.The ISIR and Ms T was also able to shed some light on the processes that ensued following some actions that Mother undertook, including calling National Society for Prevention of Cruelty to Children (“NSPCC”) in August 2019, and speaking to L School before she returned to Hong Kong in June 2020. I shall elaborate on these events further below. 70.The ISIR attached two documents from the Bracknell Forest Council Social Services (“Bracknell”), these involved a “Section 47 Enquiry” which was conducted. According to Section 47 of the Children Act 1989, when a children social care services receive a referral and information has been gathered during an assessment in the course of which a concern arises that a child maybe suffering, or likely to suffer, significant harm, the local agency is required to make enquiries. The agency will conduct a Strategy Meeting to determine whether an enquiry should be initiated. The purpose of the enquiry and assessment enables a local agency to decide whether any action should be taken to safeguard and promote the wellbeing of the child. 71.According to Ms T, “The child protection investigation took place after the police notification to Bracknell Forest Children Social Care child protection team alerting them about the allegation made against the child’s Father in Hong Kong.”
72.Ms T was supportive of the Relocation Application. In her recommendations and conclusion:
Father’s relationship with the Daughters 73.Father has claimed that he was a hands-on father with A, as the Mother was still working after she was born, and Father had no work engagement in HK. O was born 6 months before the Petition, so has spent less time with the Father, who has said on affidavit that O is the child of another man. This allegation was not pursued at the trial. 74.There is clear consensus in the two SIRs, which confirmed that the relationship between the Father and the Daughters is positive. 75.Both counsel have addressed the Court on this point. The Mother says that despite all their differences, she has ensured that the Daughter’s relationship with the Father remain untainted by her concerns and these proceedings; and the Father says that “M has not simply proven at the Trial on the balance of probabilities that the above false allegation she made against the F are true.” Issues 76.The following issues are before the Court
The Legal Principles with regard to Relocation 77.The general principles are set out in s.3 of the Guardianship of Minors Ordinance (Cap. 13) which states that:
78.Section 48C of the Matrimonial Causes Ordinance Cap179 also provided that:
79.The applicable principles governing relocation application were based on the English Court of Appeal case of Payne v Payne [2001] Fam 473 and adopted by our Court of Appeal in SMM v TWM [2010] HKFLR 308, [2010] HKLRD 37 CA where Cheung JA summarised them at §21 of his judgment as follows:
80.In the recent case of BA and BL (Child Relocation) [2019] 4 HKLRD 23 the Court of Appeal reiterated and further elaborated on the approach to be taken in relocation cases.
81.HHJ I Wong has in his recent case of JTMW v NAV FCMC 8504/2017 [2020] HKFC 244 succinctly summarized important points of principles enunciated in the case of ZJ v XWN at paragraphs 52 - 56:
82.For the sake of completeness, I will cite what is known as the checklist factors, which have been listed in our “Children’s Proceedings (Parental Responsibility) Bill, and has yet to be passed as law in Hong Kong. These are factors that should be taken into account when determining issues relating to children and where their best interest is to be considered:
Issue 1: Should the Mothers relocation application be granted? Is the Mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the Father from the Daughters’ lives? 83.The Mother is returning home to the UK where she was born and raised, and where her parents are; her venture out to Hong Kong with the Father in pursuit of a career has ended with her intention to be the main carer of the Daughters, these divorce proceedings, and the pandemic. With the need to take care of two young children, no personal income and the difficult experience in obtaining financial support from the Father, it makes sense for her to go back to the UK, where she can re-establish her life, and where she has emotional and child caring support from her extended family. 84.The ISIR has confirmed that her parenting capacity, intended accommodation, the living condition, her parental support, and local resources are positive and in support of her Relocation Application. 85.I accept that this is a reasonable move on the Mother’s part, and that her motivation to relocate is genuine; and not motivated by some selfish desire to exclude the Daughters from the Father. Is the Mother’s application founded on practical proposals both well researched and investigated? 86.The Mother plans to live with her parents on her return to the UK. Her proposal states that “the Mother and Children will move back to the maternal grandparents’ house … in the short to medium term to recover financially and to benefit from the support of her family”. 87.During the trial, the Mother has actually said that she has a job waiting for her on her return, the workplace is within a short distance from her parents’ home; this would give her the opportunity to regain a certain degree of financial independence; and the Daughters can be looked after by the maternal grandparents while she is at work. Although it is not clear whether this job is still available but it does show that the Mother is able to secure work close by her parents’ home. 88.The Daughters are familiar with the maternal side of the family, having spent a number of holidays with them, and the maternal grandparents had been to Hong Kong to assist the Mother with looking after them. 89.As for education, the Mother had placed A at the L School, where she attended briefly between the period from February to June 2020. This school is 8 minutes’ drive from the maternal grandparents’ home. The Mother said that this school was previously attended by the Father’s sons from his previous marriage, and was reputed to be one of the best schools in the area. 90.O is registered with a nursery school which is only 5 minutes’ away from the maternal grandparents’ home. Apparently, her education is free with the subsidy of the government. 91.In the consideration of this aspect of the Relocation Application, I rely on the independent evidence of the ISIR, and I quote hereunder some relevant paragraphs from Ms T’s report. 92.With regard to the living condition, the following observations were made:
93.With regard to the support of the maternal grandparents, who are respectively age 76 and 61, and described by Mrs T to be in good health condition:
94.Mother’s counsel stated in her closing submission that there was no cross examination or challenge to the Mother’s relocation plan, Father never commented negatively or criticized Mother’s intended move back to her parents and that this must means that the Father considers the Mother’s relocation plans to be acceptable. I accept that assessment. Is the Father’s opposition motivated by genuine concern for the future of the Daughter’s welfare or is it driven by some ulterior motive 95.As stated above, at a Hearing on 10 September 2019, the Father stated that he was in support of the relocation. The transcript of that hearing was part of the hearing bundle and clearly recorded what the Father said, “I think the Children would be better catered for … with lesser expenses in a different jurisdiction.” 96.The Wife’s counsel closing submission pointed out the discrepancy between what was said by him in September 2019, and his affidavit dated 17 April 2020, before the certified transcript from the Court was obtained. Quoting his affidavit:
97.What the Father was quoted to have said came from a transcript from the Court, and this version in his affidavit clearly contradicted what he said in Court in September 2019. 98.I acknowledge that the Father’s opposition to the Relocation Application is driven by some concern that he might not be able to see the children because of what he alleged that the Mother had done. He claimed that due to the Mother’s report to the Police / authorities in the UK, he would be investigated should he return to the UK. What Mother did that caused this reaction 99.The Father’s counsel accused the mother of setting out a “game plan to retain her control over the children to the exclusion of the Father”. And that it was a “deliberate plan” which net effect is that the Mother has “well and truly poisoned the well in England, such that it is inevitable that should F wish to exercise access in England, a risk assessment will be carried out pursuant to the S. 47 enquiry.” (my emphasis) 100.The evidence before the court on the August 2019 incident was that Mother had contacted NSPCC in the UK to seek help. The timing actually coincided with her having just received the first SIR, which was the report which cited that there is no child sexual abuse between a father and a female child on mere allegation of touching. According to her evidence in court, Mother stated that she was looking for help, and NSPCC came up in her search on the internet. Under cross examination, when challenged as to why she did not seek further help from the Hong Kong authorities she stated that she was surely entitled to seek help from more than one source. To this the Father’s counsel submitted that “The only conclusion that can be drawn is that M specifically triggered this enquiry in England as she was not achieving what she wanted in Hong Kong. M’s failure to disclose the extremely serious investigation in England in her affidavit on relocation warrants a dismissal of her relocation application at stage 1”. 101.I disagree with the Father’s contention and accept the Mother’s position, especially when the SIR did not seem to give her any reassurance or guidance on what she believes to be a concern. She was challenged why she went to a UK resource, and she said:
102.I also accept that she has gravitated to towards agencies in the UK as that is where she came from. Under cross examination, Mother explained that she called the NSPCC Helpline, and that it was a “plea for help”, and not a report to the police. She said:
103.More importantly to answer the Father’s allegation that she had reported to the police, the “Single Assessment” from Bracknell stated clearly that the Police was alerted in August 2019 by NSPCC. 104.Letters were produced in Court which explained that the Police contacted the Mother to follow up on the matter in September 2019. The abovementioned Bracknell reports also stated that the investigation that took place in October 2019 was as a result of the police being informed by border patrol that the family has returned to the UK, and they contacted the Mother to arrange for an assessment. The police and CSC visited the mother as a result. I therefore do not accept the Father’s contention that Mother had deliberately contacted the authorities to report on the Father. 105.The Father cross examined Ms T about the Mother’s phone call to NSPCC which triggered a report to the police. Ms T was clear in her evidence that it was not the Mother who made a report to the police; nor was there any evidence that the Mother was aware that her call would lead to an investigation being opened. I therefore believe her when she said she did not know the internal process after her call to NSPCC. The police thereafter informed Bracknell, which then initiated a s.47 enquiry in October. This investigation was closed at the end of October 2019. 106.In June 2020, Mother spoke to the L School which A was then attending. Mother explained in court that she went to speak to L School when the Father’s solicitors wrote to the school in May 2020, that she had not intended to inform the school about the divorce but as the Father did, she went to speak to them to “give them context”. According to the ISIR, she did this because she was “worried about A’s emotional and behaviours needs for being exposed to domestic abuse and potentially being subject to sexual abuse”. Ms T reported that as a result the Mother’s conversation with the school, “Following the child protection procedures, L School shared this with Bracknell Forest Counsel Social Service.” The record of contact from Bracknell showed that this took place on the 24 June 2020, the Mother’s concern was acknowledged but was told no safeguarding procedure would be put in place until the Mother has relocated back to the UK. The case on that contact was then closed. 107.Again, the authorities were alerted only because the Mother was speaking with the school about her concern for A, and this triggered off the child protection procedures resulting in the authorities being informed. 108.There was no evidence to support the Father’s insistence that the Mother had made a referral to the police to deliberately taint him. 109.The Father holds a different view. When asked in cross examination, the Father claimed that “UK has been contaminated by my wife … my wife makes up these allegations, if I go back with this shadow hanging over me, all my wife needs to do is to phone up some authorities in the first instance of access and then I will be under investigation … I am worried about the report, they have damaging inferences to me and I need to sort that out before I can be reassured as to access.” His counsel went on to say “That sums up the consequence of the steps taken by M in England, again with no evidence whatsoever, but guaranteeing problems for F in maintaining his relationship with his children.” (my emphasis) 110.The Father’s case implied that he would most definitely be subject to an investigation when he returned to the UK. I am not convinced this is the case. There is no evidence before this Court that he will be automatically investigated (if at all) once he lands in the UK; if this were the case, he would have adduced evidence to this effect. 111.From the ISIR, Ms T reported that in the context of the Mothers concern about the Police search and the Bot Bot incident
In her recommendation regarding access arrangement, Ms T said:
112.In cross examination, Ms T gave evidence that either of the parties can refer this case for investigation, but did not say that the Father will be automatically investigated on his return. 113.Even if the Mother were to initiate an investigation, the Father would have sufficient opportunity to clear his name if he was wrongfully accused by the Mother. Reflecting on the Father’s position when he said he “would not oppose relocation a few years time when he is assured that his access has been consolidated”. I fail to see how a few years is going to help his concern of an investigation by the UK authorities if he does not clear the matter with them. Indeed, I can see that it is to the Father’s advantage to do so proactively, to enable him to see the Daughters and to ensure that his future access is unhindered. The Father said it would be difficult for him to clear his name with the authorities, but no evidence or authorities were put forward as to what such difficulties might be. 114.In consideration of the case under this head, I have also borne in mind the fact that the Father’s roots, businesses (although allegedly passed onto his son), homes and financial assets, are in the UK; it is difficult to conceive that he would not return to the UK for fear of being investigated. I am also conscious that he now has a partner and some jobs here, and although he has not put forward these factors as a basis of his objection to the Relocation Application, I have considered this and whether this should be a factor in considering whether the Daughters are not allowed to relocate. I am satisfied that this is not a valid reason that should impede any relocation of the Daughters. What would be the extent of the detriment to the Father and his future relationship with the daughters were the relocation application to be granted 115.All the evidence from the two SIRs showed that the Father has a good relationship with the Daughters. In the updated SIR, the SWO observed, on 21 October 2020, the Daughters relationship with the Father was “affectionate and loving”. And “It was observed that both girls interacted happily with the [Father] and had close and natural “relationship by sitting on his lap.” She has also stated that “the father-daughter relationship would not be affected detrimentally by the mother’s relocation”. 116.Despite the Father’s complaints that his access to the Daughters has been obstructed by a dictatorial Mother, his positive relationship with the Daughters points rather to the Mother’s facilitation of access to the Daughters, and her efforts to make sure that the acrimony between her and the Father does not affect the Daughters nor impact their relationship. I believe the Mother’s evidence in this regard. 117.Electronic access has worked in the past when the Mother was visiting UK. There is no reason why this electronic access could not or would not continue if the Mother’s Relocation Application is granted. While the Mother was in UK with the Daughters, she had also continued to send their photos and videos to the Father, including a Father Days’ card made by the Daughters of which the Father had not acknowledged receipt. This is also evident of the Mother’s efforts to ensure that the Father remains connected to the Daughters, and vice versa. 118.There is nothing to prevent the Father from returning to UK at any point of time; he is from the UK while his stay in Hong Kong was based only on a dependant visa to the Mother. Mother has offered supervised day access to him when he returns to the UK. 119.I also take cognizance of Ms T evidence in cross examination, that the Mother is very committed to enabling the relationship between the Father and the Daughters. Mother had also said that she would not allow her family to speak ill of the Father, Ms T felt that the Mother did not want the Father to be presented negatively in front of the Children. I accept Ms T’s evidence and her assessment of the Mother’s position on this. To what extent would that detriment be offset by an extension of the daughters’ relationship with the maternal family 120.The Daughters have spent a number of holidays with their maternal grandparents. The Mother has returned to the UK frequently, she said in oral evidence at least twice a year and always at Christmas; and the Daughters are close to their maternal grandparents and the Mother’s siblings. 121.There does not appear to be in evidence that there is a relationship between the Daughters and the Fathers’ children from his previous marriage. If there is, then it is also an opportunity for this to develop when the Daughters are back in the UK. 122.The Daughters would benefit enormously from the support of and in building a relationship with their extended family. What would be the impact on the Mother of a refusal to her realistic proposal 123.Refusal of the Mother’s application would no doubt have a negative impact on her, and hence negatively impact on her care for the Daughters. She has no close family support and is practically alone in Hong Kong. In particular, the living standard in Hong Kong being high, she would be at the mercy of the Father in terms of financial support, and based on history of these proceedings, this would cause her stress and hardship going forward. 124.The SWO in the second SIR put it succinctly:
125.I acknowledge that the Mother will have difficulty finding a job in Hong Kong in the current economic environment even if she wanted to; but no doubt looking after the Daughters will be her priority. I accept and agree with the SWO’s analysis. Overall what would be in the best interests of the Daughters? 126.The Daughters’ lives have been in limbo for more than a year, they have been moving around in terms of accommodation and schools, their financial support have been compromised. Stability and familiarity must clearly be in their best interest. 127.Having carefully considered all the evidence and the views of the social welfare officers and Ms T, I consider the Daughters’ interests would be best served by the Mother’s relocation with them to the UK. The Legal Principles with regard to Custody 128.In this case where Mother is asking for sole custody and the Father joint custody, both parties have referred me to the seminal case of PD v KWW (Child: Joint Custody) [2010] 4 HKLRD 191, it is clear that the best interest of the child is the paramount consideration of the Court.
Issue 2: What should be the custody Order to be made for the Daughters 129.It is the Mother’s contention that it has been impossible to communicate with the Father effectively with regard to the Daughters due to Father’s extreme ideas being vastly different from hers. In this regard, she cited his approach to medical treatment including his view not to vaccinate the Daughters, that suncreen caused cancer, that he returned a book about space to the library because he does not allow them to learn about science; he called the animation movie “Frozen” occult, and the Mother has exhibited emails which seemed to suggest that the Father believed the earth was flat. The Mother complained that he had been deliberately obstructive and aggressive in his communications and had left the Mother with no choice but to go to Court for numerous applications including trips to the UK, interim maintenance, remaining in the UK pending the global pandemic, appointment of supervisors for access; hence leading to exorbitant legal fees which she could not afford and have left her in debt. 130.The two SIRs were both supportive of joint custody 131.The first report was prepared to look at the issue of custody, care and control of the Daughters. With regard to custody, it says:
132.However, I also observed that in her recommendation, this SWO proposed the following and it suggested that there was a recognition of the strife between the parties with regard to some basic decisions regarding the Daughters:
133.The Updated SIR echoed the recommendation of joint custody:
134.I am conscious of the difficulty in the relationship and recognize the uphill efforts that the Mother has to make to discuss matters with the Father. I am also conscious and agree that the Father has, for whatever reasons he deems more important, made matters challenging for the Mother. I have read the communication between the parties via emails and Whatsapp, and noticed the Father’s unnecessarily strong language and accusatory tone he directed at her. He had even called her a “compulsive liar” in Court. 135.In this regard, I have reminded myself of the authorities which stated that “the general rule of thumb is that joint custody should only be ordered where the parents are able to work together effectively.” 136.I would also quote here the authority put forward by the Mother’s counsel in the case of ML v LJ [2008] HKFLR 88 where Recorder Rimsky Yuen gave guidance to these principles:
137.Throughout the history of this Court in making decisions of sole versus joint custody, it has faced varying factual matrixes which have led to one decision over the other; but in my view, at the end of the day, the assessment must be weighed between the parties’ ability to “work together” and what is in the best interests of the children. 138.The Mother has protected the Daughters well and they have not been affected negatively by the difficulties in the communication between their parents. Weighing all the considerations, I am of the view that joint custody, allowing the Father to participate in a parental role, and from a distance if he chooses not to return to the UK, is beneficial to the Daughters in their overall development; so long as their interests are not affected. 139.I will therefore make an aspirational Order for joint custody, and I am hopeful that once this Relocation Application is behind the parties, and the Mother and Daughters have settled down in UK, that Father and Mother will be able to put aside the mistrusts and accusations so as to communicate for the best interests of their children. Issue 3: What access arrangement should be put in place for the Father if the Relocation Application is granted 140.It is the Father’s case that the Mother has been obstructive of his access to the Daughters. His counsel claimed that “Father was constantly prohibited from bonding with his Children by M’s gross litigation misconduct and her dictatorial and obstructive approach towards access.” 141.I am not of the view that the Mother was deliberately obstructive with a view to ousting the Father from the Daughters’ lives. 142.The Mother has provided her proposals prior to the trial regarding access arrangement for the Daughters should her Relocation Application be granted. These include video access, and time available to the Father when he visits the UK, and her offer to bring the Daughters to Hong Kong if the Father remains here provided he pays for the costs of travel, accommodation and supervision. 143.These proposals were not challenged in cross examination, the only issue before me therefore, is whether the access the Father has going forward should continued to be supervised. 144.In making my determination on this point, I return to the bases upon which the Mother is asking for supervised access for the Father. This relates in particular to Police search and the Book Collection. The Police search - Discussion 145.I have said above how the parties’ evidence differed in terms of what happened during the Police search. To start with, I would say here and now that I found the Father’s evidence on this incident to be evasive and contradictory. 146.The Father stated in his affidavit that:
But he retracted from that in his oral evidence to say it was less than 10 police officers, about 6 to 7, but could not remember the exact number. 147.The Father never denied there was a search warrant before the hearing but he denied there was a search warrant in court, then he claimed not to know what a search warrant was, and said words to the following effect:
148.There is no search warrant in evidence as the police would always take it with them after the search. The Father’s denial of the events in court was also contradicted by the letter written by his then solicitors, which stated that “the police did arrive unexpectedly asking to search the apartment for alleged illegal images of children.” Under cross examination, he stated that “Unlawful images of children are not child pornography.” 149. Father had, in his affidavit further blamed the Mother as being behind this whole police search incident, as part of her plot to leave him,
This accusation was not followed through by his counsel at trial. 150.The Father destroyed the computer with a hammer after the police left. But according to him, not before he and the Mother went to buy a new laptop and transferred data from the old computer to the new one. Mother said that she only helped him to transfer information to an external hard disk, and she had no knowledge of the Father’s intention to destroy the computer. She said they purchased the new computer after the old laptop was destroyed. 151.I found this act of destruction rather drastic, the Father explained this by saying that he thought the police had put some sort of bugging device into his laptop. This explanation is also strange since he had already bought a new laptop he could use, why would a planted bugging device (if there was one) in the old laptop affect him? I agree with the Mother’s submission this is more likely in line with an attempt to destroy what is inside the original computer instead getting rid of a bugged computer, and / or in the Mother’s words, out of worry that the police would return to take away his laptop. Under cross examination, he failed to explain why he was destroying the laptop, except to say that he did not know where the hard disk was, so he opened the laptop, saw a metal casing, and he smashed it. 152.Under cross examination, he claimed that he did not know what the police had done. But again, this contradicted his aforementioned affidavit and his instructions to his then solicitors when writing to the Mother, where they said that he provided all contents of his mobile phone, his laptop to the police and “they copied all of his online history”. Letter from C Lawyers 153.The covering letter from the Father’s then solicitors said this:
154.The following came under the letter of C Lawyers dated 3 July 2019:
155.I find the letter from C Lawyers casts more questions than it was supposed to answer. The letter stated that there were “limited information provided by the police” but did not say what information, and that “various units of the Police” were contacted by C Lawyers but did not say which ones. The Father was asked in Court to produce a list of units that C Lawyers approached, but no list was ever produced by him. The letter did not say that the investigation was closed, but instead said in the light that there was “no case found”, “there is unlikely to be any active investigation”. In my view, there is nothing to convince this Court that the exercise conducted by C Lawyers on this issue is a complete and conclusive one. 156.I am of the view that it is very unlikely for 10 police officers to enter a premise without good cause, nor likely that that they had no warrant at hand to justify their intended investigation at the premise. If there was a warrant, there must be a reasonable cause to support its issuance. 157.My view is that the Father has been evasive under cross examination on this topic and I do not believe his evidence when he said there was no search warrant or that he does not know what a search warrant is or that he did not know what the police had done. If he was shown a piece of paper with his name on it when the police entered, why would he not say what the paper was. I am not satisfied that he did not know the reason for which the police went to the apartment. The Father offered for the Mother to follow up this matter with the Police but she was unable to do so as the police would not give any information to her in connection with the investigation into the Father due to data privacy regulations. It was completely within the Father’s power to demonstrate that this case is closed as he alleged; but what he has chosen to produce fell far short of this conclusion. The Book Collection – Discussion 158.I refer to the excerpts of the list of titles from the Book Collection above mentioned. The Father started off with saying in Court that the implication that it is pornography is an absurdity. 159.It is the Father’s evidence that he had collected these books for 30 years, at the hearing, he said:
160.The Mother’s counsel submitted that this answer is contradictory in itself. I agree. He must have been clearly aware of what was in the collection as he has to cross check the list when he purchased new books. 161.New evidence also arose when asked where he acquired these books. First, he claimed it was E-bay or Amazon, then he said he had a dealer in the UK to buy books on his behalf, and then he also added that he purchased them in bulk from estates when the owner passed away, and therefore claimed “it was wrong to paint a picture that I selected each and every title”. These latter answers were not in his affidavits, and sounded like an attempt to distance himself from the knowledge and details of these book titles. 162.Moving on to the explicit book covers put in evidence by the Mother’s solicitors. Granted that these are book covers that they downloaded from the internet, the Father in his Affidavit had this to say:
In the same Affidavit, the Father then uttered the following contradictory statements:
163.I concur with the submission of the Mother’s Counsel that if he had not read any of the books, how would he know they are mere low-grade literature with no photographs, and that they have no cover images. Under cross examination, Father then claimed that “these books may have the same titles but different editions would have different covers”; on further questions from the Mother’s counsel, he said he took no photos of these covers. 164.As mentioned above, the Father claimed that the Mother is fully aware of his collection, and his counsel stated that the Mother has underplayed her knowledge of this Book Collection. On this I note that the Father had actually said the Mother did not spend much time at L House where the Book Collection was kept prior to their move to Hong Kong:
Therefore, given that she did not spent much time there, and that the room with the Book Collection could sometimes be locked, I therefore accept the Mother’s evidence that she did not know the extent and details of the book titles until the time she re-looked at the email with the list in July 2019. 165.The Father then gave contradictory evidence in his affidavit saying that the Mother was not concerned with nor disapproved of his collection, but in court said that he got rid of the books in late 2018 to save his marriage. The Mother was not aware that he got rid of the books until after the divorce proceedings have commenced, so it is difficult to see how he intended to save his marriage when he did not tell his wife that he had got rid of the very thing that caused her concerns and which in part led to the divorce. 166.With regard to the whereabouts of the Book Collection, there was yet further contradictory evidence from the Father. In his affidavit of 18 November 2020, he mentioned that the Book Collection was sold to his son, and “had been disposed of in late 2018”, but then said in Court that it was January 2019. When the Mother’s solicitors wrote to the Father’s solicitors after the initial discovery of the list of titles in July 2019, there was no mention by him that the books were disposed in late 2018 or early 2019. Nor was it ever mentioned in his affidavit dated 17 April 2020 when he talked about his Book Collection there. In giving evidence in Court, he said he did not know where the Book Collection was as he had given them to his son; and then under cross examination, he said he sold it to his son for £1. I find it hard to believe that the Father made no effort to ascertain where this collection has gone to as he must know that his possession of these books is something that would be canvassed at this trial. Did the son keep it for himself, did he on-sell it, and is there any evidence to this effect? All the Father said was: “I don’t know, I gave them to my son and I have told him I don’t want to know where they are.” 167.With regard to this Book Collection, I concur with the Mother’s submission in the following regard:
168.Indeed, Father’s counsel has called it his “academic collection”, and in his affidavit, he said:
He then said it was intended to be his legacy. He spoke of making a donation of this collection, so there could be his name on a brass plaque with this donation. He said that the Vatican and the British Library have similar collections, and he could contribute to people doing research on this subject. But at the end, he told this Court that he gave it to his son, and maybe for £1. 169.I find none of these explanation credible. He has unsuccessfully tried to distance himself from this Book Collection, and gave no plausible explanation or elaboration to support this as an academic collection as he claimed, nor why he chose to collect books with contents of this nature in particular if he does not have an interest in the subject matter. 170.Furthermore, I am of the opinion that the Father had tried to divert attention by stating the following in his affidavit:
And also in his Answer to Questionnaire:
171.It is not about where the books are or even if the Daughters can see them. It is his interest in the subject matter that is the cause for concern. 172.Mother’s counsel has in her closing submission summarized her position as follows:
Fact Finding Hearing 173.Just prior to the present hearing, the Father’s solicitors have asked for a fact-finding hearing regarding the allegations Mother made against the Father. This arose as a result of what they said was revealed in the ISIR which they claimed to be non-disclosure by the Mother. They first asked that Ms T be cross examined, which DDJ S Wong refused for lack of video link facilities, they then asked for a fact-finding hearing and adjournment of the trial; afterwards when the video link was available and a date was given for Ms T to give evidence remotely, the Judge refused the application for a fact-finding hearing. The Father’s solicitors sought leave to appeal against this decision and DDJ S Wong refused leave in her decision on 12 January 2021. This issue was not taken up any further by the Father, although his counsel brought this up again in her closing submission. 174.DDJ S Wong was of the view that this fact-finding hearing was a delaying tactic by the Father, and said this in her decision:
175.In this trial, the issue of the Mother’s allegations will affect my decision on whether the Father should have supervised access to the Daughters, I need to consider, on a balance of probabilities, if the Father may pose a possible risk to them based on the evidence before me. 176.Father’s counsel quoted the case of CCL v SW FCMC 10564/2009, where the decision of HHJ Bruno Chan “set out the legal principles where a parent had made allegations against the other parent, concluding that:
177.I would distinguish this case from the above decision by first recognizing that in the present case, Mother never alleged that sexual abuse has taken place. Therefore, this is not a matter where I can assess the possibility of future risks based on an alleged but unproved abuse in the past. Furthermore, the learned Judge found against the mother’s allegations based on his assessment of the mother’s suspected motives to obtain the child’s custody so as to gain advantage in her ancillary relief claim; and also on multiple social investigation and psychological reports in that case which indicated that the child therein was under immense conflicting parental loyalty pressure and that she might have been coached when she complained about the abuses. 178.Coming back to this present case. 179.The undisputed incident of the Police search in August 2018 looking for child pornography has given me concern; as this event, which was more likely than not based on a police search warrant, could not have happened for no reasons. Acknowledging that there are data protection rules in place, it is clear to me that the Father is the only person who can investigate the status of this investigation. While the Father’s counsel can argue that he has done so with the letter from C Lawyers to prove that the case is now closed, but as I have said above, the said letter about their investigation still left a lot of questions unanswered. I also placed weight on the fact that the Father was asked to inform the court what searches were done by C Lawyers and he had failed to produce this information. I am therefore not satisfied that the police investigation on the Father has fully closed as he claimed. 180.There is no dispute that the Book Collection exists. Even the Father acknowledged that there are almost 20,000 books on sexology in his collection. The Father’s evidence regarding his Book Collection is contradictory, and different versions and additional evidence were brought up at trial. Looking at the titles of the books in the Book Collection, while I cannot say with certainty that this is evidential of a predisposition to undesirable behaviours with children, but with his vast collection of books on this subject, it is certainly an indication of his interests in the subject matter. At the trial, he said:
I do not believe him when he said that he has no interest in the subject matter. I am also of the view that his claim that this was a mere academic collection has not been substantiated. I have not heard in any way what this means, how this collection serves his academic interests, and / or how he made use of them for academic reasons. Despite what he said about legacy and donation, in the end, he told the Court he gave it away for £1. 181.I find the Father’s evidence, with regard to at least these two events to be evasive to say the least and I do not find him to be credible generally. I have also based this assessment on his demeanour when he gave evidence in Court. 182.I am of the view that the Mother has acted out of an abundance of caution for the safety and welfare of the Daughters. I can appreciate that on the accumulation of factors that were before her and from her perspective, that she felt the need to ensure their safety. Her case was clear from the beginning, it was not that she alleged that the Daughters have been sexually molested and abused, but she felt that they are at risk. I accept that she has genuine and legitimately based concerns for the safety and well-being of the Daughters. 183.I look at these incidents, including the Bot Bot incident and the Clubhouse incident, on a cumulative basis and assess this matter based on balance of probabilities as to risk to the Daughters; in this exercise, the most important guiding principle is what is in their best interest. I conclude that on the standard of proof required of me, I have cause to be concerned that there is a possibility of risk to the Daughters if their access is not supervised. The Court has a duty to protect vulnerable children from harm, and a risk of this nature is unacceptable. Importantly, they are still very young, and they are not at an age where they are able to assess or to speak up on whether something that happens to them is causing them harm. 184.In the Mother’s counsel opening submission, she made reference to the case of GCOL v IHL FCMC 10850/2006 [2017] HKCU 2611, in this decision by HHJ Melloy made in August 2017, she had to decide on whether supervision should continue for the child of the family in that case, who was then 12. The paramount consideration for the best interest of a minor child remains the guiding principle. In that case, the Judge decided that the child, who had supervised access since age 3, should continue to have supervised access for 2 more years before further review. 185.In my view, supervised access is appropriate and necessary in this case and I order that it should continue until further order. This will not prevent the Father from re-visiting this arrangement when the Daughters are older. In my view, this will not negatively affect the relationship between the Father and the Daughters if the parties are sensible, and the parents should remind themselves that they should put their children’s interest before their own emotions and history. Access arrangement before and after the Relocation 186.Prior to the Mother’s actual departure for relocation, the Father’s access should be continued to be supervised by a professional nanny. The Mother is directed not to attend the access except for the purpose of dropping off and picking up the Daughters. I shall also order that the professional nanny should be engaged by the Mother to give her comfort, but the costs to be shared between the parties. The nanny should be informed of the parameters of the access including time frame, location and any conditions attached. 187.After the relocation, the weekly virtual access shall continue. The Father has not proposed timing for these virtual access in his proposals, and he has not challenged the Mother’s offer. I shall therefore adopt the Mother’s proposals in this regard. 188.If and when the Father returns to the UK, Father’s day access shall be supervised by a professional nanny, the access is not to be attended by the Mother except for dropping off or picking up the Daughters, the professional nanny is to be engaged by the Mother, and the costs of the nanny to be shared between the parties. Again, the nanny should be informed of the parameters of the access including time frame, location and any conditions attached. Pandemic and Timing 189.As at the writing of this judgment, the pandemic situation is easing off in the UK. If this situation persists, then Mother and the Daughters should be able to travel. I therefore direct that they should relocate to the UK on or after the 25 August 2021, and in any event, no later than 31 August 2021. The reason being that: i. The Father would have the coming months to spend with the Daughters over the summer; ii. The Daughters would then be able to return to the UK to commence their school term in September 2021. Costs 190.The costs incurred for these proceedings is staggering considering that the suit was not contested, there were no hearing on the Mother’s MPS application, the ancillary relief discussion has not effectively started, and that this Relocation Application only commenced in January 2020. At the time of trial, the Form Hs revealed that the Mother has spent close to HK$4 Million, and the Father more than $10 Million. 191.There are twelve bundles of exhibits and ten bundles of correspondences for this trial. The scale in which this case has fanned out is clearly disproportionate to the issues, and the costs spent thereon unjustifiably exorbitant. 192.One could not help but think that these resources would have been better deployed for the benefit of the Daughters. 193.Given this is a children’s matter and that neither parties have succeeded in all of their claims, I will make no order as to costs. Orders 194.Leave be given for the children of the family namely A, a girl born in October 2015, and O, a girl born in July 2018 to be removed out of the jurisdiction of Hong Kong on a permanent basis in order to relocate to the UK, with effect from the 25 August 2021, and in any event, not later than 31 August 2021. 195.The Petitioner and the Respondent is granted Joint Custody of A and O. 196.The Petitioner shall have care and control of A and O. Supervised Access prior to Relocation 197.Previous Order regarding supervised access shall continue until the Mother and the Daughters’ relocation; with liberty to apply. Save and except that during this period, Mother shall not attend the supervised access except for the purpose of dropping off and picking up the Daughters. The supervision shall be by an independent nanny appointed by the Mother, with the cost to be borne by both Father and Mother. The nanny shall be informed of the parameters of the access including timing, location, and any conditions attached. Access after Relocation 198.The Father shall have the following video telephone access after the Petitioner and the Daughters’ Relocation
199.If the Father travels to the UK and subject to at least 4 weeks’ notice in advance to Mother:
200.All access to the Daughters shall be supervised access by a professional nanny. The cost of such nanny to be equally shared between the parties. The nanny shall be informed of the parameters of the access including timing, location, and any conditions attached. 201.The Mother shall not attend the Father’s supervised access so long as there is a professional nanny present; except for the purpose of dropping off and picking up the Daughters for access time. 202.Liberty to apply on an urgent basis with respect to the implementation of this order. 203.There shall be no order as to costs, which will be an order nisi, to be made absolute 14 days from the date of this Order, unless an application is made to vary the same. Direction 204.It is directed that the Petitioner do obtain a mirror order from the appropriate court in the UK with respect to the terms of this order, such order to be obtained prior to, or as soon as practicable after, her relocation with the Daughters to the UK.
Miss Mairead Rattigan, Counsel instructed by Messrs Withers for Petitioner Miss Frances Irving, Counsel instructed by Messrs Oldham, Li & Nie for Respondent |
Cases cited in this judgment
Further hearings and rulings under FCMC 1410/2019