Zfy v. Schc

CAMP 87/2022

[2022] HKCA 794

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 87 OF 2022

(ON AN INTENDED APPEAL FROM FCMP NO. 97 OF 2020)

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(Child Relocation)

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Before :  Hon Cheung, G Lam and Chow JJA in Court

Date of Hearing :  27 May 2022

Date of Judgment :  2 June 2022

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court) :

I.  Background

1.D is a seven‑year‑old child born in Hong Kong in August 2014. Her parents met in Macau in 2013 and were married in Chengdu in the Mainland in February 2014. Her applicant mother (‘the Mother’) was 21 years old and a Chengdu resident at the time of the marriage. The respondent father (‘the Father’) was then 39 years old and a Hong Kong resident. After the marriage, the Mother came to Hong Kong to give birth to D. She came to Hong Kong as a visitor and was given permission to stay for six months. This remains to be the Mother’s current status in Hong Kong with the permission to stay having been renewed every six months.

2.Shortly after D was born, the Mother together with D went back to Chengdu to live for a period of six months. During that period, the Father regularly visited them in Chengdu. In August 2015, the Mother obtained a visitor visa and came to Hong Kong with D to join the Father as a family. D later began her studies in Hong Kong. The Mother as a non‑resident in Hong Kong is not eligible to work here. In 2016, the parties drifted apart in their relationship due to age and character difference. In November 2017, the parties officially separated and the Father moved out from the matrimonial home. In May 2018, the parents divorced in Chengdu. They signed a Divorce Agreement which was registered with the local authority in the Mainland. Under the Divorce Agreement, the Mother has the sole custody of D. The Father now has a new girlfriend.

3.On the Mother’s application, H H Judge George Own granted leave to her to bring D with her to live in Chengdu (‘the relocation order’) subject to, inter alia, the parties agreeing on the access arrangements by the Father. To date the parties have not been able to agree on the access arrangement. The Father now applies for leave to appeal against the relocation order. His application was previously refused by the Judge. Kwan VP directed the present application to be in the nature of a roll‑up hearing in that if leave to appeal is granted, the Court will treat the hearing as the appeal proper.

II.  Principles

4.The only principle in matters concerning a child is the overarching or paramount principle of the best interest of the child. How this principle is to be approached is well established in a number of recent decisions of this Court in SMM v. TWM (Child : Relocation) [2010] 4 HKLRD 37, ZJ v. XWN (Leave to Appeal : Child Relocation [2018] 3 HKLRD 644, BA v. BL (Child Relocation) [2019] 4 HKLRD 23 and H v. W [2021] 2 HKLRD 1251. These cases expressly recognized the guidelines in Payne v. Payne [2001] Fam 473. The principle and approach stated in these cases are accepted by the parties.

5.The granting of the relocation order by the Judge is an exercise of discretion. The well‑established principle in an appeal against the exercise of discretion is that the appellate court is not to exercise the discretion afresh but will only do so if it can be shown that the discretion was not exercised at all, or that the Judge made some error of law in its exercise, or that the decision was plainly wrong, see, for example, TAC v. VDC Nee VDM HCMP 2198/2012, 5 December 2012. Again, there is no dispute on this point by the parties.

III.  Overview

6.The Judge heard the evidence of the parents, the Social Work Officer, Ms Chan who recommended D to remain in Hong Kong and the Father’s mother who indicated that she is prepared to look after D. The Judge also had the International Social Investigation Report (‘ISIR’) which dealt with the position in Chengdu in terms of D’s future schooling and home care.

7.The parents have a relatively short marriage of slightly over four years. D only began to live in Hong Kong with her parents as a family unit in August 2015. Slightly over two years later, the Father moved out from the former matrimonial home. Under the Divorce Agreement, the Mother has the sole custody of D. In 2018, the Mother and D moved to a property belonging to the Father. After the divorce, the Mother took care of D full time with the help of a domestic helper. Whenever the Mother is away from Hong Kong, the paternal grandmother would look after the child. D now studies in an international school in Hong Kong.

8.During the marriage, the Mother had worked in the Mainland and she travelled there from time to time. The Shenzhen company that the Mother worked with intended to expand its business to Chengdu. Due to the COVID lockdown, the Mother was unable to travel to the Mainland.

9.In preparation for the relocation, the Mother has enrolled D in an international school in Chengdu. She has also bought a property in Chengdu where she and D will live. Her parents in Chengdu have agreed to assist her in taking care of D.

10.The Mother agreed to bring D to Hong Kong for the Father to exercise access twice a year during school holidays. She also agreed to set up video conference between the Father and D after the relocation during other days. The Father could also visit D in Chengdu over the weekend if he so wished.

11.The Judge summarized the Mother’s reasons for relocation as follows :

1)  The Mother could not work in Hong Kong given her non‑resident status. Due to her work commitment with the Mainland company, the Mother needed to take extended periods of time every month on travelling for earning income to support herself and D. This was unsustainable in the long run as D would then be taken care of by the paternal grandmother and domestic helper despite the fact that she was the main carer of D.

2)  The then increasingly unstable social political situation in Hong Kong, public discontent and unrest, widespread violence and rioting had caused the Mother to consider Chengdu as a safe and stable place to assure the safety of D.

3)  The education system in Hong Kong had caused tremendous stress to D who had expressed unhappiness to the Mother. The early school hours and incessant school interviews that D had to attend in order to keep pace with the competitive education in Hong Kong had even caused D to cry bitterly a few times after she attended a few school interviews.

4)  It is opportune time for D at her present age to resettle in Chengdu, the Mainland, as it would be easier for her to adapt and assimilate to the culture.

12.The Judge stated that it is common ground that neither the Mother nor the Father was pursuing or defending this application with the ulterior motive or selfishness to single out or remove the other parent from the life of D. He did not accept the recommendation of Ms Chan on relocation. He held that the Father had not provided the Court with any solid and well‑planned child care arrangement if the Mother’s relocation application failed and the Mother chooses to return to Chengdu by herself. Apart from adopting the Payne guidelines, he also identified the relevant factors in the ‘welfare checklist’ which Poon J (as he then was) in H v. N [2012] 5 HKLRD 498 recommended the Court to consider. The Judge also considered five other practical factors including the advice that D may receive from the Mother as she approaches puberty. The Judge held :

‘ 91. I have repeatedly reminded myself that the ultimate consideration should be the best interests of the child D, rather than the convenience, preference or interests of the mother M on this relocation application. ….

….

94.  M had lived in Hong Kong for just about or slightly less than 6 years up until this trial in 2021, even before discounting her periods of absence for work or leisure prior to the lock‑down caused by the Covid‑19 pandemic. Hence, quoting the words of Hartmann JA (as he then was) in the SMM v TWM case (supra), it would be fair to say that M was just returning to her “home”. Chengdu has been M’s hometown. On the other hand, D could not be said to be leaving Hong Kong for a place that she had never been there before.

95.  Considering all her evidence in the round, I am satisfied that M’s relocation was a realistic one, which was practical and also well planned. It was not a step to flee with D to Chengdu without heed of practicality or planning.’

IV.  Grounds of appeal

13.Mr Pang SC (together with Ms Choy) for the Father relied on eleven grounds of appeal which can be summarized as follows :

1)  The Judge wrongly presumed in favour of the Mother who is the primary carer of D;

2)  The Judge wrongly departed from the recommendations of Ms Chan in her Social Investigation Report dated 24 November 2020 who recommended against relocation;

3)  The Judge misunderstood the nature of the ISIR;

4)  The Judge failed to consider the effect of the parties’ Divorce Agreement signed in Chengdu, which stated, inter alia, that D shall live in Hong Kong;

5)  The Judge erred in failing to consider the effect of COVID on relocation, which meant that as a result of the travel restrictions and quarantine requirements, the Father could not maintain the same level of face‑to‑face contact with D upon relocation;

6)  The Judge failed to take into account material facts which negated the Mother’s financial concerns which motivated her application for relocation;

7)  The Judge wrongly considered as a relevant factor that the Father has not put in any plan for D’s care arrangement if the Mother’s application failed;

8)  There was no evidence that the Mother would not continue to stay in Hong Kong in such a case;

9)  The Judge erred in his finding on the role of the maternal grandmother in looking after D;

10)  The Judge erred in finding that the Father is less willing to take up parental responsibility; and

11)  The Judge failed to consider other relevant grounds.

V.  Our view

14.We will deal with the grounds.

1)  No presumption in favour of the primary carer

15.The Father’s argument that the Judge had wrongly assumed that there was a presumption in favour of the primary carer was grounded on what the Judge said in [51] of his judgment where he referred to the concept of primary care and control as having precedence over the concept of locality :

‘ 51. It is fair to say that in all relocation cases, if the concept of locality was the theme of ‘status quo’, there was bound to be uprooting it if relocation was successful. This should not be the case. That said, I believe in relocation cases, it would be just and fair that the concept of day to day primary care and control of the child in question should take precedence over the concept of locality. Apart from the concept of primary care and control and locality, there was no exhaustive list of other factors for consideration of ‘status quo’ in relocation cases. I would say the ‘welfare checklist’ may provide some guidance on this aspect. Anyway, it is my view that the day to day primary care and control does play a significant part of the consideration of ‘status quo’ especially when the child in question is of young age.’

16.In our view, this ground is not reasonably arguable. The Judge had expressly referred to the authorities of this Court which repeatedly held that in a relocation application there is no presumption in favour of the primary carer. He emphasized the principle of the best interest of the child and applied the Payne guidelines which were previously adopted by this Court in the authorities and the factors in the ‘welfare checklist’ to determine what outcome would fit the best interest of the child. The Judge’s reference to the primary carer being given precedence in [51] of his judgment was discussed in the context of the Father’s argument of keeping the status quo of the child in Hong Kong. Hence, the reference to locality. Properly read, all that the Judge was saying is that in the best interest of D, who is a girl of tender age, she should be looked after by the Mother who happened to be her primary carer and clearly has a close relationship with D.

2)  Social Investigation Report

17.Ms Chan recommended D to remain in Hong Kong. It is clearly within the province of the Judge to decide whether Ms Chan’s recommendation is to be followed or not. He decided not to do so and had given full reasons for his decision in terms of Ms Chan’s views on the school arrangement in Chengdu, the performance of D in the Hong Kong school, the likely future performance of D in the Chengdu school, the relationship between the Father and D if D is to be relocated and the future access arrangements. The Father argued that if a judge is contemplating rejecting the recommendation of a social work officer, he should disclose the direction of his thought so that Ms Chan can address it in her oral evidence : Re A (Children:1959 UN Declaration) [1998] 1 FLR 354 at page 356; Re W (Residence) [1999] 2 FLR 390 at pages 394‑395; Re R (Residence Order) [2010] 1 FLR 509 at [79]. The Father submitted that this Court in H v. W (Child Relocation) [2021] 2 HKLRD 1251, [2021] HKCA 733 at [40‑42] had applied the approach of these cases.

18.In our view, this ground is not reasonably arguable. It is of note that in H v. W, this Court, after referring to the English decisions, also affirmed a long line of decision of this Court such as WSM v. FSY (CACV 35/2004) and 王訴韋(Transliteration Wong v. Wai (CACV 153/2012)) where it was held that a social investigation report is not to be regarded as a kind of ‘special’ material information, nor is a recommendation in a social investigation report a legal presumption which requires a rebuttal, and that in each case, the judge has to make an independent assessment after considering the facts of each case and to decide whether to accept part or all of the recommendations, or not to accept any part of the recommendations at all, and ultimately, the decision must be in the best interests of the child. The important point of the authorities is to allow the social work officer a chance to respond to the reservation on the contents of the report. In this case, the Judge rejected Ms Chan’s recommendation after hearing, inter alia, her evidence when she was specifically cross‑examined on these issues and given an opportunity to respond. This is not a case where the Judge only came up with his view when he began to write the judgment later on without giving Ms Chan a chance to respond to his reservations. This is precisely the approach suggested by the authorities. The Browne v. Dunn (1893) 6 R 67 approach is not applicable.

19.The Judge’s decision to accept the ISIR is not simply because Ms Chan was not aware of that report when she made her own recommendation. The Judge’s rejection of Ms Chan’s recommendation was based on the inadequacy of her report itself. The Father criticized the Judge for saying in his decision on leave to appeal that he should not step into the arena. The Father argued that the Judge had a quasi‑inquisitorial role in family cases. In our view, this criticism ignored the fact that the inadequacy of Ms Chan’s report was fully canvassed at the hearing below and the Judge had also the benefit of having the ISIR which provided him with information on the child care arrangement of D in Chengdu.

3)  Nature of the ISIR

20.The Father argued that the Judge wrongly held at [74] that the ‘ISIR supports relocation’ when the general practice is that an ISIR would not opine on whether relocation is suitable or appropriate (NAV v. JTMW (FCMC 4191/2021)).

21.This ground is not reasonably arguable. In the present case, the ISIR did not make any recommendation on relocation. When the Judge held that the ‘ISIR supports relocation’, what he meant is simply that the investigation by ISIR in terms of the living condition, schooling and child care arrangement in Chengdu support the Mother’s application to relocate.

4)  The parties’ agreement for D to grow up in Hong Kong

22.The Father argued that in the Divorce Agreement, it was agreed in [1] that the Mother shall reside in Hong Kong with D, and in [3] if the Mother had to take D out of Hong Kong to visit relatives or travel, she had to seek the Father’s permission a week before. While the Judge did mention in his judgment that under the Divorce Agreement, the Mother and D were to live in Hong Kong, he did not give weight to the same when determining the Mother’s application. While this as a factor should not be accorded great weight in itself, it is relevant to the Mother’s reasons for relocation, and reflects that the Mother was prepared to and did agree to remain in Hong Kong with D after divorce. It is particularly relevant to what the situation would be if the application was not granted.

23.In our view, this ground is not reasonably arguable. The Mother said that this ground is premised on a disputed fact – whether the Father and the Mother had an unequivocable express agreement that D would only live in Hong Kong post‑divorce when they signed the Divorce Agreement. It is the Mother’s case that there was no specific discussion on where D should live in the long run. The Judge had not made a finding on this disputed issue. But this is beside the point, because what the Court is concerned with is the best interest of the child and not the intention of the parents at the time when they signed the Divorce Agreement.

5)  COVID related travelling restrictions

24.The Father argued that the Judge’s failure to take into account the uncertainties as to whether and when the Father and D could travel frequently between the two jurisdictions given the current restrictions and quarantine requirements would amount to a failure to address D’s best interests sufficiently in a holistic way : H v. W [2021] HKCA 733 at [87‑88].

25.This is a new point not covered in the Father’s application for leave to appeal before the Judge. The COVID restriction on travel was only briefly mentioned by the Father in his evidence when he was asked about the Mother’s proposed weekend access by him in Chengdu. He said he was able to perform the weekend access ‘exclude COVID’. In the Father’s closing submission, the COVID lockdown in the Mainland was not raised by the Father as one of the objections to the Mother’s relocation application. It was only raised in the Father’s reply submission as follows :

‘ 22. In any event, with COVID-19 continuing, there is no guarantee when the Father can fly. It is unrealistic to say that he can still fly – just that he has to quarantine. This is unworkable due to the Father’s work commitments. He can only realistically fly after the lifting of the travel restrictions, which may take many months if not years. It is unfair to both the Father and the Mother to be deprived of physical access until then.’

26.The restrictions on travel to the Mainland initially caused us concern because it will have a direct impact on the access of the Father with the child. The Father currently is able to see the child physically three evenings a week during the weekdays and he also has Saturday whole day access (not overnight). The travel restriction will hamper this physical contact even if video meetings are held. The topic, however, was only lightly touched upon at the trial below in June and August 2021 because it was likely that the parties then were anticipating the travel restrictions would not continue for so long in the Mainland. The Judge at the time of the trial already had the proposals of the Mother on access after relocation, it was only the details that needed to be worked out, hence the relocation order was granted subject to, inter alia, the details of the access. It cannot be said that the Judge had not considered the access arrangement in his evaluation of whether it is in the best interest of D to be relocated. The arguments now advanced by the Father had not been considered by the Judge because the matter really only became more acute after the judgment below. Although the parties had now supplied us with the information on the restrictions on travel to the Mainland and Hong Kong, we are of the view that this matter should best be left to be considered by the Judge. He has granted liberty to apply to the parties and the relocation order has not been sealed. If after hearing the parties, the Judge is not satisfied with the access arrangement because of the travel restrictions then he is certainly entitled to postpone the relocation or rescind it. The caution is that the longer the order is postponed, the more likely is the chance of change of circumstances which affects the issue of the best interest of D. As the matter now stands, this is not a matter that will cause us to grant leave to appeal.

6)  Misunderstanding the evidence in relation to the Mother’s finances

27.The Father argued that the Judge wrongly assumed that the Mother has to work to support herself and D when in fact he would continue to pay for their living costs in Hong Kong so that the Mother would not have to return to Chengdu to earn a living.

28.This ground is not reasonably arguable. It is not necessary for us to go into the disputed issue of whether the Father had settled the living expenses of the Mother or D promptly or fully. The Judge granted the relocation order not simply because the Mother could not realistically make a living in Hong Kong by reason of her non‑resident status. We have already summarized the background of the case and Judge’s decision. The Judge had considered all the relevant circumstances including the close relationship between the Mother and D and the plan put forward by the Mother of relocating to Chengdu. We failed to see how the Father’s indication that he would support the Mother and D’s living expenses in Hong Kong would have upset the Mother’s application to relocate. The Mother is seeking a new life by going home with D after her failed marriage here. The Judge accepted her plan to relocate as realistic, practical and well planned.

7)  Lack of plan by the Father and 8)  Ignoring the Mother’s evidence that she would remain in Hong Kong if relocation failed

29.These two grounds can be dealt with together.

30.The Father argued that the Judge erred in treating the question of whether the Father had put in place any solid and well‑planned child care arrangement if the Mother’s relocation failed and she chose to return to Chengdu by herself as being relevant, when the undisputed evidence was that if her application failed, she would stay in Hong Kong to care for D. The hypothetical question of what if the Mother returned to Chengdu by herself was never in issue. The Mother had never suggested that she would relocate to Chengdu leaving D in Hong Kong. As such, there was no basis for the Father to adduce evidence to deal with such a situation. The Judge thus erred in finding that ‘the only probable reason or reasonable inference that could be drawn’ ‘was that [the Father] … was not as mindful as [the Mother] over … care arrangement’.

31.This ground is not reasonably arguable. The Mother did not say that she would wholly stay in Hong Kong if her application failed. She had also said that she had to travel to work and she would strive as best she could to take care of D.

32.In any event, the Judge was correct to comment on the Father’s lack of plan. The Father had issued a summons for the sole custody, care and control of D. As Ms Yip SC (together with Ms Yu) for the Mother submitted, it is ironical that the Father should criticize the Judge. It is his case that, even if relocation is not allowed and assuming the Mother is to stay in Hong Kong, the custody, care and control should still be varied. Yet, he failed to come up with any care plan.

9)  Paternal grandmother’s evidence and 10)  Father taking up parental responsibility

33.These grounds can be dealt with together. They are not reasonably arguable. The Father had not satisfied the high threshold of challenging findings of fact by the Judge on these two issues. In any event, even if these two matters are to be found in the Father’s favour, it remains to be the case that the Mother has always been the primary carer of D.

11)  Failing to take into account other relevant facts

34.The Father argued that these grounds have been particlarised in the notice of appeal. These matters are material and relevant but not adequately (if at all) dealt with by the Judge.

35.This ground is not reasonably arguable. The Judge had fully dealt with these matters in his judgment.

VI.  Conclusion

36.The Father has failed to show that he has a reasonable prospect of success in challenging the exercise of discretion by the Judge.

37.Accordingly, the Father’s application for leave to appeal is refused. We will make an order nisi, that the costs of this application be borne by the Father. We will, however, not disturb the costs orders below. We will grant certificate for two counsel.

Mr Robert Pang SC and Ms Alison Choy, instructed by Pansy Leung Tang & Chua, for the Respondent

Ms Anita Yip SC and Ms Lily Yu, instructed by Nixon Peabody CWL, for the Applicant