S S v. P S
Read the full judgment text of FCMC 712/2014 on BabelCite. This Family Court judgment was delivered on 30 June 2022 before District Judge K K PANG.
Child relocation – Guardianship of Minors Ordinance – Best interests of the child – Payne guidelines – Access arrangements – Social Investigation Report – Leave granted – Parental coordinator – UK Parent Visa – Children's wishes – Father's genuine motivation – Practical proposals – Detriment to Mother – Contact arrangements
Legal issues: Permission for relocation · Care and control access arrangements
Outcome: Leave granted for children to relocate to England with Father. Care and control to Father, generous access to Mother.
Cites 4 cases
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FCMC 712 / 2014 [2022] HKFC 134 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 712 OF 2014 ----------------------------
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--------------------------- J U D G M E N T --------------------------- 1.I refer to the Petitioner mother as ‘Mother’ and the Respondent father as ‘Father’ respectively. The court is concerned with the welfare of the two children of the family, namely, RA (a girl born in October 2006) and JY (a boy born in April 2010) (collectively ‘the children’). Background 2.This is the trial of: -
3.The Father is India origin, aged 45, a professional investor working from home. Having lived here since 1998, he is a permanent resident in Hong Kong. He has family in India and in England. The Mother is British, aged 51, a teacher, having lived here for 23 years, a permanent resident in Hong Kong. The parties met in 1999 and were married in 2005. The children were born in Hong Kong. The children and the Mother have British passports and the Father holds the Hong Kong SAR passport. 4.The parties were divorced in 2014. By the consent order dated 5 August 2014, the parties have joint custody and shared care and control of the children and they have agreed that they will be parallel parenting. By the consent order dated 23 October 2014, the parties have reached a clean break of the financial matters, each having received HKD17.7 million. The parties have agreed and undertaken that they will each contribute 50% of the costs for the children such as school and university fees, school trips and excursions, medical expenses, extracurricular activities, healthcare costs, and the children’s living costs when they are staying with them. The Decree Absolute was granted on 29 October 2014. By the consent order dated 13 October 2016, arrangements were made for sharing of holidays. The children have been dividing their time equally between the two households on a 5/5/2/2 basis up to September 2020. By the consent order dated 14 September 2020, the children spend equal time with each parent on a week-on/ week-off basis during term time, with changeovers each Friday. The change was precipitated by the wishes of the children and has been the arrangement up to-date. The Father’s first application and the present application 5.The Father was concerned about the social unrest and violent protests started in or about June 2019. The children became anxious, frightened of going out and were extremely distressed by the violent protests and demonstration. The children’s schools were closed. On one occasion RA’s school bus was abruptly stopped on the road by protesters. The Father decided that it was no longer in the children’s best interest to remain in Hong Kong. On 16 September 2020, the Father filed his first summons for leave to relocate the children to England. By the summons filed on 6 November 2020, the Mother in turn sought an order to have the Father’s application stayed or adjourned due to the uncertainties of the Covid-19 pandemic and Brexit. Later, when the Father became aware of that the capital gains tax rate in England might significantly rise in the near future, as recommended by the UK’s Capital Gains Tax Stage 1 Report, which meant that the Father’s after tax income would be very much reduced, he feared that it would not be financially feasible for them to relocate to England. He withdrew the summons filed on 16 September 2020 in November 2020. After having done more research and consulted with UK tax lawyers and having learned that it should be possible for him to structure his financial affairs in such a way as to mitigate what would otherwise be a very significant tax liability, he renewed the application for leave to remove the children to live in England. The Mother’s positions 6.The Mother suggests that she having always been actively involved in terms of day to day physical and emotional care of the children, the court should dismiss the present application to protect the children’s most important right to have both parents continuously and on a daily basis involved in their lives. She is deeply concerned that the children and she will have difficulty in keeping in close contact as they do now and it will not be even remotely the strong bond as they have now if relocation is granted. The children are well settled in Hong Kong, happily and thriving, socially, academically and personally. She suggests it is in the best interests of the children to keep this stability and equilibrium of them seeing both parents on a regular basis. The Mother is extremely critical of the Father’s mental health and his capability to take care of the children and to meet their needs. She stresses that the Father has never lived with the children outside of Hong Kong. She seeks an order for a full clinical psychiatric evaluation of the Father and a psychological evaluation of the children to determine their understanding of the meaning of such a relocation. The Mother suggests that the Father’s application is made out of his own selfish desire to obtain a UK passport, the Father’s access proposal is impractical and unreasonable, the Father’s application is premature and his relocation plan is not well thought through or researched. The Mother proposes that the children stay in Hong Kong and the parties continue co-parenting the children for a few more years until the children go to a university of their choices. 7.The Mother prays for the dismissal of the Father’s application, but she puts forward the alternative option that the Mother moves to England together with the children at the same time. She suggests that this is a reasonable solution should relocation be granted as that will allow the children to have both parents in their lives as they are used to. In the scenario that the Mother moves to England, despite that the Mother accepts that she can afford to live in England out of her own resources, the Mother seeks support from the Father to cover her accommodation, living expenses and to compensate her financial losses as detailed in her letters dated 2 March, 4 March, 18 March and 25 March 2022 to the Father and the paragraphs 102 to 119 of the Mother’s Opening. 8.By the summons dated 20 April 2022 and returnable on 13 June 2022 and her 9th Affirmation dated 20 April 2022, the Mother seeks from the Father the children’s school fees and expenses in England, the children’s health insurance in England, a lump sum to cover the Mother’s losses and relocation expenses, the rent of her accommodation of a similar living standard to the Father in the UK. Much to the Mother’s chagrin, the Father considers that the Mother is financially secure as a result of the settlement upon divorce, furthermore, there is no legal basis for the Mother’s demands for the Father’s financial support for the mother’s relocation to England, payment for her accommodation, living expenses or compensation for her alleged losses. In view of the Father’s position above versus the Mother’s position that she will not relocate to England with the children without the Father’s financial support, it is clear that the Mother’s proposal that she moves together with the children is a non-starter at least so far as the present proceedings are concerned. As such, I shall proceed to deal with the present applications on the premises that the Mother will not move to England together with the children even if the Father’s application is granted. Issues 9.The main issues to be considered are likely to include: -
The evidence 10.A lot of evidence was adduced. Both parties and the Social Work Officer testified. The Father filed his 4th Affirmation on 16 September 2020, 5th Affirmation on 29 September 2020, 6th Affirmation on 22 June 2021, 7th Affirmation on 30 July 2021, 8th Affirmation on 9 November 2021 and 9th Affirmation on 21 January 2022. The Mother filed her 5th Affidavit on 6 November 2020, 6th Affirmation on 30 September 2021, 7th Affirmation on 22 December 2021, 8th Affirmation on 26 January 2022 and 9th Affirmation on 20 April 2022. I also read the Social Investigation Report dated 30 December 2021 prepared by Ms Tsui. By consent, the preparation of an International Social Investigation Report was dispensed with. The applicable law 11.The general principles governing applications relating to children are set out in s.3 of the Guardianship of Minors Ordinance ‘GMO’) Cap. 13, which provide that: -
12.The court of appeal has recently stated the applicable law in BA v BL (Child Relocation) [2019] 4 HKLRD 23 as follows: -
13.The court of appeal in YSYM v LHB [2020] HKCA 586 has recently emphasised the importance of a court taking into account the wishes of children in cases of this nature:
14.The court has a wide discretion in respect of children matters and the court will have to consider the facts of each particular case in order to carefully assess what may or may not be in the child’s best interests. By s 3 of the GMO, if there are any court proceedings in which a child is involved, the court shall regard his best interests as the first and paramount consideration. 15.Both parties refer to the so-called ‘welfare checklist’. The checklist gives the following matters as those the court should consider in determining the appropriate orders to make: -
16.The checklist is applied with three caveats: (1) Judges may choose only those factors on the checklist which are relevant to the case before the court, as long as the judge’s decision, supported by reasons, is demonstrably in the best interests of the minor, he cannot be criticised for not going through all the factors one by one; (2) Judges are not subject to the laborious necessity of expressly relating their findings in every case to its specific provisions one by one; (3) It is not meant to be exhaustive: H v N [2012] 5 HKLRD 498 § 26 to 32 The views of the children 17.The court has a duty to consider the children’s wishes pursuant to s 3(1)(a)(i)(A) of the GMO. 18.The views of the children are presented to the court as one of the matters contained in the Social Investigation Report. In her report, Ms Tsui states: -
19.It is abundantly clear from Ms Tsui’s report that the children very much want to leave and they have held this wish and expressed it to their parents for more than 2 years. While she accepts that the children’s wishes are relevant, the Mother questions the weight they should be given. The Mother suggests that the children do not yet have the maturity to fully understand the impact over relocation and its implications, and she is concerned that the children have been strongly and unduly influenced by the Father over the matter. In her words, the Father made the children scared to live in Hong Kong, sent repeated and multiple emails to the children, sent videos of violence in Hong Kong and articles using scaremongering tactics and his incessant bombardment and harassment have the children now saying they want to go to England. Despite the Mother’s contention in the above, I take the view that it shows from Ms Tsui’s report that the children have carefully considered the intended relocation and their desire to move to live and study in England is the result of serious and well-thought-out decisions. 20.Of RA, Ms Tsui states that she
21.In her e-mail to the Mother on 11 July 2020, RA wrote: -
22.In her e-mail to the Mother on 20 July 2020, RA wrote: -
23.About JY, Ms Tsui states “He said that he really wanted to go to England for study…” 24.According to Ms Tsui, the children are of age and mature. Ms Tsui states: -
25.After having carefully considered all evidence, I accept that the children are of age and mature. They have carefully considered the intended relocation and their desire to move to live and study in England is the result of serious and well-thought-out decisions and, accordingly the children’s wish should be accorded with considerable weight by the court. Social Investigation Report 26.The court has a duty to consider the Social Investigation Report, pursuant to s 3(1)(a)(i)(B) of the GMO. 27.In her report, Ms Tsui recommends that the children should be allowed to be removed to live and study in England. She states: -
28.The Mother picks on Ms Tsui’s report. In her words, in the present case the report was not thoroughly investigated or professionally assessed in a child-focused manner, Ms Tsui’s recommendations were given mainly on the children’s wishes and the Father’s plan, but every other issue or concern was ignored and the report focused solely on what the children said they wanted for without any justification. Contrary to the Mother’s criticism above, upon a perusal of Ms Tsui’s report, I take the view that Ms Tsui has closely investigated the relevant issues such as the motivation of the Father’s application, the children’s wishes, the question of whether the Father has a realistic plan, the children’s needs such as schooling and housing, the nature of the relationship of the children with each of the parents and with other family members, the children’s age, maturity, social and cultural background, the children’s need to maintain close relationship with the Mother and the question of how the children will spend time with the Mother if the children will live in England and the Mother remains in Hong Kong. She maintains a balanced view on the sometime controversial information and discuss issues in details. After having carefully considered all evidence, I take the view that Ms Tsui’s considered opinion should be accorded with considerable weight by the court. Family Support 29.According to the Father, the paternal grandparents and the children’s relationship is close. In the Mother’s words, the Father’s family that he speaks of are strangers to the children. In view of that the paternal grandparents visited the children in Hong Kong from time to time, I do not accept that they are strangers to the children. The Father’s aunt lives in Uxbridge, London and his cousin and his family live in Gerrards Cross. His cousin has two children, a boy and a girl who are close in age to the children. It is undisputed that the children have a close relationship with the Mother’s family who are living about 6 hours away by car from Gerrards Cross. I accept that both parties’ family may visit the children more often if they are living in England. 30.The Mother is deeply concerned that the children and she will have difficulty in keeping in close contact as they do now. It is in the best interests of the children to have both parents living in the same country, but if the Mother remains in Hong Kong, the Father will encourage generous access. Over and above, it is clear from Ms Tsui’s report that the children are prepared to maintain close contact with the Mother if they move to live and study in England and she remains in Hong Kong. In the circumstances, I take the view that the Mother’s strong relationship with the children will go on and the children will continue to have the Mother’s support if the children move to live and study in England and she remains in Hong Kong. Psychological evaluation on the children? 31.The Mother remarks that the children saw child psychologist Dr Pon in August 2014 and then Dr Caleb Knight. I take notice that the above counselling service was provided by the order dated 5 August 2014 to assist the children with the transition period when the parties move to separate households and. Since then, the children have been well settled. 32.By the consent application filed on 28 November 2014, the parties have agreed that either party be at liberty to bring an application regarding the children or any matter concerning them, including the issue of a child psychologist in the future. By the summons filed on 22 December 2021, the Mother applies for a psychological evaluation of the children allegedly due to the current emotional turbulence and the decisions they are forced to take without any professional support. The Mother avers that psychological evaluation on the children is required to consider the harm to the children of removing them from their home country and from their mother to let them grow up in a foreign country. She suggests that social workers by their training do not acquire the training or skills nor have the time to conduct proper in-depth investigation into the impact of removing the children in the present case. Despite that this is Ms Tsui’s first relocation application that she has dealt with, Ms Tsui is a very experienced social worker. Having been a social worker since 2000, she joined the Social Welfare Department in 2009 and was moved to the Family Service Unit in 2017 and has been working in the Family and Child Protective Services Unit since 2020. After having carefully considered all evidence, I take the view that Ms Tsui is in a good position to investigate and make recommendation on whether there is a need for a psychological evaluation on the children in the present case. Ms Tsui was asked to consider the question of a psychologist being appointed when the court called for her report. In her investigation, she concludes from the information gathered from the children’s schools and teachers and her interviews with the children that ‘they were observed to be calm with stable emotion’. When questioned by the Mother about the need for the children to be seen by a psychologist, Ms Tsui said that she ‘would not disagree’ but she made it clear that ‘for the aspect of relocation I have already assessed this’. It is pertinent to take notice that in the paragraph 59 of her report, Ms Tsui states that: -
33.The Mother questioned Ms Tsui whether she was aware that RA had previously had suicidal thoughts in January and February 2020. Ms Tsui is aware of this and she has looked into it. She said RA told her that it was due to the protests and Covid and the suspension of school. Ms Tsui said that RA told her that she had seen the school counsellor and had settled the issues. 34.Taking into consideration all evidence, I accept that there is no need for a psychological evaluation for the children as now requested by the Mother. The physical, emotional needs of the children, and their age, maturity, social and cultural background 35.The children were born and have been living in Hong Kong since birth. It is noted that if the Father’s application for permission to relocate the children to England is granted, the children will have to go through big changes in their living environments. The court is required to consider how well they will cope with disruptions that may be caused by uprooting them and requiring them to begin all over again. 36.Ms Tsui states that: -
37.In relation to JY,
38.When questioned by the Mother about the effect that it would have on the children if they could not see her for a long time, Ms Tsui said she talked to the clhildren about this:
39.When questioned by the Mother whether the children were aware of the problems that they might face when they move to the UK, Ms Tsui said that they were. Ms Tsui gave examples:
40.It is clear from Ms Tsui’s report that, not only the children are familiar with the social and cultural background to be offered in England but also they look forward to living there. Schooling 41.Both children are currently studying at ESF school. RA is in year 11 and JY is in year 7. The children have secured places in ACS Hillingdon International (‘ACS’) and JY has a place at Thorpe House. RA has a place in St Mary’s School that is conditional upon her GCSE results. ACS is a co-education school that both children can attend. Thorpe House is a boys’ school and St Mary’s School is a girls’ school. ACS follows the IB curriculum. All three schools are private schools and are considered ones of the best schools in the area. The children presently attend a good school in Hong Kong, but I accept that they will also be able to attend good schools in England. About RA’s studying plan, Ms Tsui in her report stated that RA preferred going to England “at an earlier stage” RA will be doing GCSE exams and will begin the two-year A level course from September 2022. RA wants to move in good time for her to start her two year A level course in the UK in September 2022. Housing 42.The Father proposes to live with the children in Gerrards Cross where his cousin lives. It is accepted that it is very good area that has the benefit of being in the countryside but is still only 20-minute train journey and 40 minutes away from London by car. The Father plans to purchase a property there but has not bought one as he is awaiting the outcome of this application. He has established connections with real estate agents in the area and has identified a number of homes of the type that he will purchase. The Father envisages that he will have a much bigger home in the UK than he can afford in Hong Kong. There is no doubt that the Father can offer satisfactory housing to the children in England. Finance 43.There are no issues as to the Father’s financial ability to support the children living and studying in England. The likely effect on the child of any changes in the child’s circumstances 44.Status quo is in favour of keeping the children in Hong Kong, but I do not regard it as a determinative factor in the present case. Although status quo is important, its importance would nevertheless need to be assessed on a case-by-case basis, depending on individual circumstance. The children are living in Hong Kong notwithstanding, they are British, they do not speak the local language, their first language is English, they go to International Schools, they live in the circles of the expatriate communities, their close friends are mostly expatriates living in Hong Kong, and according to Ms Tsui’s report, many of the children’s friends have left Hong Kong for England and the children are hoping to reconnect with them there. Surely the children’s home is in Hong Kong, but I regard that their root is not necessarily here. The children are familiar with the social and cultural environments to be offered by England. Accordingly, the disruption caused as a result of the change in the environment will be much less. I do not foresee that the children will have any significant adjustment problem if they move to live in England. The parties’ capability to take care of the children and to meet their needs 45.The capability of each parent to take care of the children and to meet their needs is an important factor. Since divorce, the children have been dividing their time largely equal between the parties. Despite that both the Mother and the Father have been actively involved in the day-to-day care of the children, seemingly a paradox, one the key issues in the present case is the Father’s capability to take care of the children and to meet their needs. Parenting coordinator 46.By the paragraphs Q and R of the consent order dated 5 August 2014, the parties have agreed to jointly engage a parenting coordinator and jointly pay the fees. Soon after the making of the court order dated 5 August 2014, the parties did jointly appoint a parenting coordinator. Then the Father found out that the Mother privately communicated with her. When he specifically drew the parenting coordinator’s attention to order dated 5 August 2014 that provides the jointly appointed parenting coordinator do communicate with the parties jointly and copy in both parties on any correspondence, she resigned. The Mother blames the Father that the parties have failed to jointly appoint a parenting coordinator ever since, but I take the view that I should not put all blame on the Father for the failure. There is distrust between the parties that apparently was caused by the Mother’s unilateral communication with the jointly appointed parenting coordinator. The parties co-parenting without a parenting coordinator afterwards notwithstanding, the children have settled well and happily switched households. RA’s broken tooth 47.The Mother criticizes the Father for not putting the children’s medical needs first. On 22 November 2015, the Mother picked up RA and was shocked to find out one of her upper left front teeth was chipped off when she played with friends earlier. The Mother criticizes the Father for not tending to RA’s broken tooth when RA was with him. I accept that the Father should have timely tended to RA’s broken tooth on 22 November 2015, but it appears to be an isolated incident. RA’s physiotherapy 48.The Mother took the Father to his e-mails sent to the Mother respectively in November 2016, February 2017 and the beginning of March 2017 where she said he was denying necessary physiotherapy for RA, despite that it was recommended by a Physiotherapy Report of the Physiotherapy Department of Tseung Kwan O Hospital. The Mother obtained the said report dated 3 February 2017 from the hospital and it was e-mailed to the Father on 3 March 2017. When the Father sent out the e-mails respectively dated November 2016, February 2017 and the beginning of March 2017, he was not aware of the report dated 3 February 2017. In his oral evidence, the Father said he would not refuse necessary physiotherapy for the children, nor would he ever do so going forward. RA’s need for therapy 49.The Mother criticizes the Father for refusing RA to have necessary therapy when she was having suicidal thoughts on two occasions in January and February 2020. The first episode was in January 2020. The Mother was worried about RA and she sent an e-mail to the school counsellor at 7:46 am on 8 January 2020. Less than 5 minutes later, at 7:55 am the Father responded. The school counsellor reported back the same day at 10:06 am that
50.The Mother acknowledged to the Father after this that while RA was ‘feeling distressed and overwhelmed with things going on in her life. I don’t think she is suicidal either.’ She suggested that RA should have two sessions with a yoga teacher doing Mindfulness courses. 51.In his response, the Father said RA should be supported by the school counsellor as advised but he did not agree to RA seeing an external therapist. The Father explains that this was in the context of the Mother having suggested the Mindfulness Yoga teacher and he did not prevent RA from having any necessary or recommended therapy. He supported RA at home as RA continued counselling with the school. 52.The second episode was in February 2020. The school counsellor e-mailed the parties on 23 February 2020 after a session with RA stating that:
53.The school counsellor suggested that it might be time to consider some external support and recommended family counselling. Subsequently, the Father wrote to the school counsellor that he did not want family therapy. The Father explains that he did not believe it would help to have both parties in therapy with RA given the state of the parties’ relationship. The Father suggests that RA and the Mother were also concerned by this, as the Mother showed in her e-mail to the school counsellor:
54.The Father stresses that he was not denying RA ongoing therapy at all. In her response to the parties, the school counsellor said she would continue to work with RA as before regularly. The Father then responded and thanked her for supporting RA. 55.RA continued with the school counsellor until about August 2020 and has not had any suicidal thoughts ever since. There is no evidence or signs that she is currently suffering from duress or pressure. The latest school reports do not indicate this. The school teachers have not recently expressed concerns about her emotional health. The decision to continue with the school counsellor was also RA’s choice. In her e-mail dated September 2020, RA wrote:
56.After having carefully considered all evidence, I accept that the Father did not ignore or brush off RA’s need for therapy. Father’s text messages 57.The Mother shows the court some text messages exchanged between the Father and the children where the Father used foul languages to the children and said it is a cause for worry. The Father admits that the languages were harsh and unkind. He accepts that he should not have lost his temper and should have acted in a better manner on the occasions. Father’s mental health 58.The Mother is extremely critical of the Father’s mental health. In April 2014, the Father took a parenting capacity evaluation with Dr Craigen and that was jointly reviewed by Dr Threlfall. According to the Mother, in the report dated 4 August 2014 it was stated that the Father was rated high on paranoia and had anxiety and obsessive-compulsive disorder (‘OCD’) and history of intrusive thoughts and further investigation was recommended. She seeks an order for a full clinical psychiatric evaluation of the Father. In contrast, the Father contests that Dr Craigen’s report gave him a clean bill of mental health and praised his parental awareness and skills. The parties went into great details about the findings and recommendations of the report dated 4 August 2014 to demonstrate their respective cases. Upon a perusal of the report dated 4 August 2014, I take the view that while the report dated 4 August 2014 did not really give the Father a clean bill of mental health, there was no conclusive clinical diagnosis that the Father was suffered from high paranoia, anxiety, OCD or intrusive thoughts. Additional assessments for further investigation were mentioned in the said report but were never done. 59.When questioned by the Mother about the report dated 4 August 2014, Ms Tsui said she had already taken the report into account in her assessment and recommendation as to the best interests of the children. Ms Tsui read the Mother’s 6th and 7th Affirmation and was fully aware of the Mother’s serious allegations about the Father’s mental health and parenting ability. In her oral evidence, Ms Tsui confirmed that there was no cause for concern about the Father’s parenting that she saw. It is also Ms Tsui’s observation that the children have been able to grow and develop well under the care of the Father. 60.After having taken into consideration all evidence, I do not see the need for a full clinical psychiatric evaluation of the Father. I accept that there is no substance to the Mother’s contention that the Father is incapable of taking care of the children if the Father and the children relocate to England and she remains in Hong Kong either. By all accounts, the Mother saw it fit to have equally shared care arrangements with the Father. Since divorce, the Father has cared for the children for around 8 years. In the Mother’s own words, the children are happy and thriving, socially, academically and personally. The children have home with the Father on 5/5/2/2 basis until September 2020 and afterwards on a week-on/ week-off basis. Ms Tsui’s report shows that the Father is a caring parent having close and intimate relationship with the children. All of the above show that the Father is capable of taking care of the children if they are living with him. The relationship of the children with each of the parents and with such other persons 61.The nature of the relationship of the children with each of the parents and with such other persons is a factor that the court will usually take into account. 62.In her report, Ms Tsui states: -
63.There is little dispute or indisputable that both parties are caring parents having close and intimate relationship with the children. The Payne guidelines Was there a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end? 64.I have no doubt the Father loves and cares for the children. I take the view that he wants to take the children to England because he thinks it is in their best interests to live and continue their study in England. The Father recognises it is in the best interests of the children to maintain their close relationship with the Mother. The Father is ready to offer generous access to the Mother in the event that his relocation application is granted. There are many other places that he can live that may be more advantageous to him in terms of tax liability. I do not believe that the Father’s present position that he wants to relocate the children to England is out of his own selfish desire to obtain a UK passport or has been motivated by the desire to exclude the Mother from the children’s life. 65.Along with I believe that the Mother loves and cares for the children and she wants the children to stay in Hong Kong as she thinks that it is better for them if the status quo is maintained, I am dismayed to find out that she refuses to cooperate in terms of securing school places in the UK for the children, even though she is well aware that this will be done without prejudice to the Mother’s case that the children should continue to live and be educated in Hog Kong. She has refused to give consent to schools in Hong Kong to facilitate the children taking assessments organised by the schools in the UK or to provide academic reference to the UK schools, furthermore, despite that by the court order made on 20 August 2021, the children are permitted to be registered at St Mary’s School, Thorpe House or ACS and to take assessments organised by the schools in the UK, the Mother wrote emails on 19 December 2021 to the schools in the UK misleadingly advising the schools that the Father had no permission from the court to enrol the children to any schools in the UK. After the Father sent emails on 21 December 2021 to the UK schools clarifying that the court order dated 20 August 2021 clearly stated that the children were permitted to be registered at the schools and to take assessments, it is regrettable that the Mother again sent emails on 3 January 2022 to the schools insists the schools freeze the applications regarding the children, relying on in support that she has joint custody of the children. I take the view that the Mother’s emails dated 19 December 2021 and 3 January 2022 respectively show blatant disregard of the court order dated 20 August 2021. I further take the view that the Mother’s unlawful interference with the Father’s applications for places in schools in the UK for the children is driven more by litigation tactics than a genuine concern for the children’s best interest in schooling, inasmuch as securing places in good schools in the UK pending the determination of the Father’s application for relocation in the next a few months obviously benefits the children. Was the application founded on practical proposals both well researched and investigated? Covid-19 66.The Mother criticises that the Father’s application is premature as it is uncertain whether the parties and the children can travel frequently between the two jurisdictions. The Mother suggests that the Covid-19 pandemic should be given much weight as it clearly impacts the whole application. It is true that the Covid-19 pandemic has up-ended countless moving and travelling plans for the past years. Despite that the pandemic is likely to stay for a long time, it is undisputed or indisputable that vaccinations and new medicines have reduced much the severity of Covid-19 for most people. Most of Europe including the UK have opened up, and Hong Kong is letting up its travel restrictions and social distancing measures. I take the view that Covid-19 is not the determining factor in the present relocation application. 67.In her Closing, the Mother mistakenly submits to the court that Ms Tsui is not in favour of removing the children from Hong Kong in the next a few months due to the Covid-19 pandemic and uncertainties of the schooling and living arrangements, relying on in support the paragraph 57 of Ms Tsui’s report. Ms Tsui’s report was prepared in December 2021. At the trial, having had the benefit of additional information, Ms Tsui has agreed that there are no longer uncertainties regarding the ability of the children to study at a good school, that the Father has taken his plans for housing as far as he can for the present time, and that the concern over access because of the pandemic is no longer as great as it was. UK Parent Visa 68.The Mother doubts whether the Father will obtain the UK Parent Visa. The Mother suggests that, to allow the Father to apply for a parent visa, the applicant Father needs to be out of the UK and the children must be living in the UK and as a consequence, the Father needs the children and the Mother to move to England to assist his application for the UK Parent Visa. Despite that the Father accepts that ‘if there is no visa then we will not be relocating’, he maintains that he will qualify for a visa so that he can live in the UK with the children. In respect of the Father’s plan for the UK Parent Visa, the Father has obtained UK solicitors’ advice that, while the children are minors and they are living with the Father, he is eligible for the UK Parent Visa. Regarding the condition that the children must be living in the UK, the UK solicitors advised they believe that ‘the definition of a British citizen living in the UK includes one returning to the UK with the applicant’. The Father’s evidence is that once the relocation order is made, he has been advised that he can apply for the visa from Hong Kong and the children can be in Hong Kong. When he does so, they do not have to be in the UK. Further, he does not need to vary the custody order such that he is granted sole custody. Having carefully considered all evidence, I take the view that the Father’s visa arrangements are workable. 69.In her Closing, the Mother suggests the court should now call for expert evidence to determine the question of the Father’s visa plan. I take the view that it is not open to the Mother to call for this in Closing. The time for making such an application has long passed. English proficiency test 70.At trial, the Mother for the first time raised her doubt about the Father’s ability to get a place to sit the required English proficiency test in Hong Kong in time. By the letter dated 10 June 2022, the solicitors wrote to the court that immediately after the trial, the Father booked the test and has passed it. 71.Never having lived, worked or studied in England and having not been to England in almost 13 years and never to the area he proposes to live notwithstanding, the Father has put forward detailed plans of accommodation, schooling, finances, care arrangements and generous proposals on keeping up the Mother’s contacts. Taking an overview of all of the above, I accept that the Father has made well thought out, realistic and practical proposals well researched and investigated. What will be the effect on the Father if his application is refused? 72.The Father takes issue with with the Mother’s contention that the Father will not suffer any harm if his application is dismissed. If his present application is granted, he will be eligible for the UK Parent Visa. After having lived in the UK under the UK Parent Visa for 5 years, as long as the child is not living an independent life, a parent will have permanent residency in the UK. If the children are unable to relocate to England in Summer 2022 but go to the UK universities after finishing Year 13 in Hong Kong, they will finish universities and start living independent lives after 3 years of moving to the UK. By the time, the Father will have to leave the UK and will not be able to live the same country with the children. 73.If the Father’s present application is refused, no doubt the children will be upset and deeply disappointed. It is worthy of noting that, in such event, RA will not be able to begin the two-year A level course from September 2022 in England like she prefers. What would be the extent of the detriment to the Mother and her future relationship with the children were the application granted? To what extent would that be offset by extension of the child’s relationship with the paternal family and homeland? 74.The Mother suggests that the Mother will be exclude from the children’s lives, due to the pandemic, due to her job requirements, due to different time zones that limit even the internet and social media contact if the Father’s application is approved. The Mother and the children clearly have a close relationship and therefore a relocation is an emotionally painful prospect. I accept that there will be negative impact on the Mother if relocation is granted. As a British passport holder the Mother has right of abode in the UK. Plainly, for both parents to move is the ideal, but if the Mother remains in Hong Kong, the Father will encourage generous access. I take the view that regardless of whether the Mother is living in Hong Kong or the UK, if the children are living with the Father, he will promote and facilitate the Mother’s visits to them. Despite that living and working in Hong Kong means that she will have to see the children by flying to England, or by the children flying to Hong Kong, and she will not be able to see the children like she wants, I do not foresee that the Mother will have difficulty in keeping up close contact with the children and with current social media unquestionably the Mother will be able to stay in contact with the children. The Father have put forward generous proposals that will allow the Mother to spend plenty of time with the children in Hong Kong and the UK. Due to the nature of her work, this Mother is able to spend a great deal of time with the children during school holidays. The Father is prepared to let the Mother have all overlapping HK and UK school holidays. The Father will pay the Mother’s flights and reasonable accommodation when she visits the children in England and will pay the children’s flights to Hong Kong. The children have their own phones and will be free to contact the Mother as they like and vice versa. While the Mother’s daily contact with the children may be reduced during school days, she can have frequent skype and telephone access, and generous ad hoc and holiday access. With the arrangements that I intend to make, I am confident that the Mother and the children’s strong relationship will continue to develop and will be able to sustain after the children moving to England. 75.If the Father and the children relocate to England, the children will be able to build up a close relationship with the paternal family that includes uncle, aunt, cousins, grandparents and grand aunt. The children have a close relationship with the Mother’s family living in English and the Father is willing to facilitate the children’s access to them. Overall, what are the arrangements in the best interests of the children? 76.I remind myself of the provisions of s 3 of the GMO which provide that when a court determines any question with respect to the custody or upbringing of a minor, the court shall regard the best interests of the minor as the first and paramount consideration, and in having such regard shall give due consideration to the social investigation report and all relevant factors. Despite that the status quo favours the Mother, given that the children will maintain close contact with both parents, and they are familiar with the surroundings offered by the Father in England, I take the view that they will not have significant adjustment problem if they are to relocate to England. It appears that the importance of the status quo is of comparatively small significance in the present case. I take the view that the Father’s application is genuine and not motivated by any selfish desire on his part, further it is founded on well researched, realistic and practical proposals. The children have places in good schools that the Father has agreed to pay for in full. To live in the UK, the Father requires a visa that he has not obtained yet, neither has he set up a home at this time but I accept that this does not mean his application is premature as he can only do these things once the removal order is arranged. He has taken legal advice on obtaining a visa from reputable lawyers in the UK and has been told that he qualifies to obtain one. He will be housing himself and the children in accommodation of a standard that exceeds their current accommodation in Hong Kong in a good area, close to the schools and the Father’s family members. I accept that his plans have advanced as far as they can and just await an order that will allow them to be finalised. I have no doubt that the Father is capable of taking care of the children if they are living with him in England. The Father has provided proposals that will allow the Mother to maintain close contact with the children and has shown that his is accommodating to ensuring that this will happen. The Father has agreed to pay for the children to fly to Hong Kong to see her. The wishes of the children have been made very clear, they want to relocate. They are both of age that their wishes carry significant weight. I take notice Ms Tsui recommends that leave be granted for the children to live and study in England. All things considered, I am persuaded that it is in the children’s best interest that they are permitted to relocate to England. 77.What it seems to me I should do is to put in place arrangements for the children spending time with the Mother after their move to England. The Father’s and the Mother’s proposals are at Annex A and Annex B respectively. In principle, I agree with the Mother that she should have enlarged holiday time and I also regard that there should be a scheme in place that is generous, flexible and will permit her ad hoc overnight stay with the children. Parental coordinator 78.In her report, Ms Tsui wrote:
79.I take the view that a parental coordinator will benefit the parties and the children especially during the transition period. Disposal 80.Upon the Father’s undertaking to pay the children’s school fees in England, their health insurance premiums and living expenses at home IT IS ORDERED that: -
Costs 81.This being a child matter, it is ordered nisi that there shall be no order as to costs of the summons filed on 22 June 2021, 30 July 2021, 22 December 2021 and 21 January 2022 respectively, including all reserved costs. The order nisi becomes absolute 14 days after the order is made unless a party has applied to the court for varying the order.
The Petitioner appearing in person together with McKenzie Friends Ms. Mairéad Rattigan Senior Counsel instructed by Withers for the Respondent Annex A RESPONDENT (FATHER’S) AMENDED OPEN PROPOSALS (IN RESPONSE TO THE MOTHER'S OPEN PROPOSALS DATED 29 APRIL 2022) In the event relocation is granted and the mother stays in Hong Kong 1. The Respondent be granted sole care and control of the Children with generous access to the Petitioner. 2. After relocating to England, RA do attend either St. Mary's School in Gerrards Cross or ACS International, and JY do attend either Thorpe House School in Gerrards Cross or ACS International School. 3. There be indirect access between the Petitioner and the Children on a daily basis by way of telephone / WhatsApp / Skype or similar, with the Respondent facilitating the Children being able to speak to the Petitioner either before going to school in the morning, or at the end of the school day during the week, and at a mutually agreed and convenient time on the weekends (taking into account the time difference). The Petitioner may also contact the Children during their school breaks. 4. In respect of all overlapping holiday dates (meaning those dates when the Children and the Petitioner have school holidays at the same time), the Children do spend these with the Petitioner, either in England, Hong Kong, or another destination of the Petitioner's choosing. 5. The Respondent do pay for two economy class return airfares from London to Hong Kong per calendar year for the Children until each child reaches the age of 18, and whilst the Petitioner's primary residence remains in Hong Kong. 6. The Respondent do provide to the Petitioner details of his and the Children's accommodation in England, to include the address and contact numbers. 7. With reasonable notice being provided to the Respondent, the Petitioner do have additional time with the Children as and when she travels to England. Such additional access can take place in England during the school term from after school and overnight, and during weekends from after school on Friday until 8pm on Sunday, or such other arrangement as the parties shall agree on. 8. The Respondent do take all reasonable steps to ensure that the Petitioner is copied into all communications and information from the Children's new schools. 9. Either parent can travel with the Children out of England for the purpose of holidays and shall provide to the other parent details of the travel to include airline tickets, accommodation and contact numbers at least 7 days before the start of the holiday. 10. It is not agreed that the Respondent shall pay for 3 business class flights for the Petitioner every year to travel to England or to any other country. The Petitioner shall pay for her own flights. 11. It is not agreed that the Respondent shall pay for accommodation when the Petitioner visits the children either in England or goes on holiday with them elsewhere. The Petitioner shall pay for her and the Children's accommodation, flights and expenses whether she spends time with them in England or goes on holidays with them overseas. 12. It is not agreed that the Respondent shall pay for any quarantine hotels if required in Hong Kong. In the event relocation is granted and the mother moves to England with the children 13. The Petitioner and Respondent shall continue to have joint custody and shared care and control of the Children in England. 14. During term-time, the Children shall spend time with the Petitioner and the Respondent on a 2 week alternating basis, with no change to the existing holiday arrangements. 15. It is not agreed that the Respondent shall pay the Petitioner's immediate expenses, her rental of a flat in England, nor a lump sum. In the event relocation is refused 16. In the event the Respondent's relocation application to England is refused, the Respondent proposes, in accordance with his Summons of 30 July 2021, that during term-time, the Children shall spend time with the Petitioner and the Respondent on a 2 week alternating basis, with no change to the existing holiday arrangements. Annex B Subject to the respondent providing this Honourable Court with indisputable evidence that guarantees his visa, or the visa itself, the Mother's offer is: • In the event immigration is granted and the mother is moving to England with the children: 1. If the Petitioner lives in England - time parenting will be as it is currently in Hong Kong, practicing joint custody care and control, alternating weeks, and equally sharing the holidays as was done until now. 2. The Respondent to pay the mother's immediate expenses. 3. The Respondent assist the Petitioner with renting a flat for at least the first year. 4. The Respondent to pay a lump sum as will be determined by the court (or agreed between the parties) for covering at least the first-year expenses for not more than 1.5 years or until she finds a paying job, the earlier. • In the event immigration is granted and the mother stays in Hong Kong 1. The Petitioner will have remote access to the Children via telephone, Skype, FaceTime, WhatsApp or other electronic means of communication. 2. The Respondent undertakes to facilitate the communication between the Children and the Petitioner. 3. The Respondent undertakes to provide details of her future accommodation, if changed, including but not limited to address and all contact numbers. 4. The Respondent will use his best endeavors to facilitate the Petitioner's time with the children during her stay in England and undertakes not to unreasonably withheld or obstruct the same. 5. Summer holiday, Xmas/New Year and Easter holidays - The Children will spend time with the Petitioner, in Hong Kong or any other destination that will be communicated to the Respondent. 6. The Respondent will pay for at least 3 flights every year for the children to Hong Kong (or an agreed alternative destination) when ticket price is the equivalent of England to Hong Kong or Hong Kong to England. 7. The Respondent will book and pay for any quarantine hotels required in Hong Kong. 8. The Respondent will pay for 3 business class flights for the mother every year to spend time with the children in England. 9. The Respondent will pay for a reasonable hotel, equivalent to 4 stars or above, in England with 2 rooms/suite for 3 visits above, and the children will stay with the Petitioner with her during her stay in England. 10. The children will stay with the mother any time she come to England to spend time with them. 11. The mother can travel with the children out of England and undertakes to return the children to England at the end of each trip. 12. The Petitioner will always have priority to spend time with the children when she flies to England, and she undertakes to notify and coordinate with the Respondent at least a week in advance. 13. Each party is allowed travel with the children during their respective time with the children and the travelling parent should provide the other parent with details of such travel (including but not limited to confirmed itinerary and airline tickets, accommodation and contact numbers). 14. Providing to the other party with details of such travel (including but not limited to confirmed itinerary and airline tickets, accommodation + contact numbers). 15. The Parties will use their best endeavors to best coordinate the time between them and enough time in advance taking into consideration the school calendar and potential implications of Jet Lag. 16. The Respondent is not allowed to remove the children |
Cases cited in this judgment