Ckfg v. Whhk
Read the full judgment text of FCMC 9093/2018 on BabelCite. This Family Court judgment was delivered on 31 August 2022 before Her Honour Judge Grace Chan.
Child relocation – Best interests of the child – BNO visa scheme – Guardianship of Minors Ordinance – Social investigation report – Application dismissed – No order as to costs. The court held that the mother’s relocation application was not genuine and the proposal was not realistic financially. The children’s wishes were given little weight as they were not informed decisions. Relocation was not in the best interests of the daughters.
Legal issues: Is the mother’s relocation application genuine? · Is the mother’s proposal realistic? · Wishes of the daughters · Best interest of the daughters
Outcome: Application dismissed
Cited by 1 case · Cites 8 cases
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FCMC 9093/2018 [2022] HKFC 183 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 9093 OF 2018 ---------------------------- BETWEEN
------------------------------- Coram : Her Honour Judge Grace Chan in Chambers (Not Open to Public) Date of Hearing : 17-18 August 2022 Date of Judgment : 31 August 2022 ----------------------- JUDGMENT ( Relocation to England ) ----------------------- Introduction 1.By her summons filed on 4 August 2021, the petitioner (“mother”) applies to permanently relocate the children of the family, namely 2 daughters now aged 10 and 8 respectively, to England under the BNO (British National (Overseas)) visa scheme introduced by the British Government in 2021. It is her view that England offers a better living and education environment to the daughters but at much lower costs than that of Hong Kong. 2.The respondent (“father”) opposes to this application. He avers that the mother did not inform and/or discuss with him of her intention of moving the daughters to England before she took out her summons. He also points out that the mother does not have a fixed abode in England, nor does she have any immediate family in England who is trustworthy in his opinion to help taking care of the daughters in case of emergency or illness of the mother. He says that as the daughters are still young, he wishes that they can stay in Hong Kong to spend more time with him until they are both in secondary schooling, by which time they will be mature enough to decide if to study in England. 3.By way of background, the parties were married in 2010. Their daughters were born in 2011 and 2014 respectively. Sadly, after the birth of the younger daughter, the parties started to drift apart due to financial matters. A quarrel broke out in March 2018 when the father found a photograph showing the mother with another man. In April 2018, the parties had another heated argument, after which the mother left the matrimonial home with the daughters. The parties separated ever since. Three months later in July 2018, she filed her petition for divorce. Decree absolute was granted in July 2021. 4.On 15 October 2018, a consent order was made to the effect that the parties are granted joint custody of the daughters, with care and control to the mother. By another consent order made on 22 April 2021, the father has reasonable access to the daughters which is broadly like this:
Caring history & current situation 5.The mother, now aged about 39, is a kindergarten teacher. She now lives in a 3-bedroom rented flat in Ho Man Tin with her elder sister, the daughters and a maid. She has a boy-friend but there is no plan of re-marriage yet. She claims that her boy-friend will not be going to England with her and the daughters. 6.The father is now about 44 years old and is living with his parents in Tuen Mun. He is a part-time system engineer and a part-time driver. He is not in any relationship right now. 7.According to the social investigation reports prepared for this case, since both parties were working parents, the elder daughter, since birth, was sent to live with and taken care of by the paternal grandparents during weekdays. After the younger daughter was born, the parties started to hire a maid and the elder daughter returned to live with them. Nevertheless, the paternal grandparents visited the daughters every day and assisted in taking care of them.[1] That explains why the social investigation officer, Ms Wong (“SWO”) observes that the relationship between the daughters and paternal grandparents is close. [2] 8.The daughters are now studying in a Catholic primary school in Tsim Sha Tsui, which is the school hand-picked by the mother and which allows students to go “through-train” from the primary school to the secondary school. By this September, the elder daughter will start Primary 6, whereas the younger daughter will be promoted to Primary 3. Applicable legal principles 9.The legal principles relating to relocation/permanent removal are rather well settled. The paramount consideration is whether the relocation is in the best interest of the children. How this is to be approached is well established in a number of decisions of our Court of Appeal 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. 10.These cases expressly recognized the guidelines in Payne v. Payne [2001] Fam 473. For example, in H v W (supra), the Court of Appeal succinctly summarized the legal principles on relocation and explained that the Payne guidelines identify a number of relevant factors which provide a structured framework in which the appraisal is to be made holistically:
11.There is also section 3 of the Guardianship of Minors Ordinance, Cap 13, which provides that the court, when dealing with applications concerning children, shall give due consideration to the “wishes of the minor”, having regard to the age and understanding of the minor and to the circumstances of the case, and “any report of the Director of the Social Welfare available to the court at the hearing”. 12.In stressing that the only test that the court should apply is the paramountcy as to the welfare of the child, the Court of Appeal in ZJ v XWN (supra) cited with approval what Vos LJ said in Re C (A Child) (Internal Relocation):
13.The “welfare checklist” referred to in the preceding paragraph include the following matters:
14.It is trite law that the “welfare checklist” is only an aide-memoire. A judge is not required to mechanically list every factor to demonstrate that he has considered the same (See: ZJ and XWN (supra) at §25 and §28; H v N [2012]5 HKLRD 498 at §§26-33). 15.It should also be noted that whether a relocation application is made by a primary carer or a non-primary carer does not give rise to any presumption in favour of or against the applicant (See: BA v BL (supra) at §4.14). 16.Hence, in my analysis, I should bear in mind that the one and only authentic legal principle that I need be concerned with is the best interests of the daughters. I shall use the aforesaid welfare checklist and the guidance provided by Payne, in so far as it is necessary and appropriate, in coming to a decision in the best interest of them. Is the mother’s relocation application genuine? 17.The mother tells that the idea to relocate became to emerge in March 2021, as many of her friends are contemplating to emigrate overseas. In her view, the overseas education system suits better the development of the daughters and gives them less study pressure. The BNO visa scheme offers a low threshold for BNO holders from Hong Kong to go and live in England. Thus, she wishes to make use of this visa scheme and go to live in England with the daughters as soon as possible, preferably by August this year, or if not, by July 2023. 18.During the trial, the mother repeatedly says that her relocation plan is for the good of the daughters, especially the elder daughter who is weak in the subjects of English and Science and is found to be sleeping in classes from time to time. She also alleges, for the first time, that she is very unsatisfied (「好多不滿意」) with the access of the father to the daughters, including,
19.The father denies that he only focuses on playing with the daughters during his access time. He says that he also teaches them to do their homework but admits that he may not be able to help them finishing all homework from time to time. He explains that the paternal grandfather slept and bathed the elder daughter only when she was young; he no longer sleeps with or bath her now. 20.For the purpose of this judgment, there is no need for me to make a determination if the allegations of the mother can be proved or not. The point to be taken is that if she is “very unsatisfied” with the current access arrangement, what she should have done is to make an application for variation of access, rather than taking this bold move of permanently removing the daughters to England. Even more worse, she does not even attempt to tell or discuss with the father of her relocation intention/plan beforehand. 21.When matters are viewed in the round, I cannot rule out that this application of relocation is an application in disguise to change the current access which in her view is a very unsatisfactory arrangement. Is the mother’s proposal realistic? 22.One must bear in mind that this application is not a home-returning relocation case, in the sense that the mother is bringing the daughters back to her home country. Rather, England is new to the mother and the daughters. The mother visited England only once which is more than 20 years ago. The daughters have never been to England before. This is to be distinguished from the facts of the case of ZFY v SCHC, CAMP 87 of 2022, [2022] HKCA 794, quoted by the mother. In that case, the applicant mother applied to take the child back to her home city in Chengdu. 23.The latest relocation plan of the mother is to live in Manchester with the daughters. Her secondary school mate, Madam Wong, and her family have already gone to live in Manchester in July 2021. Her cousin, Madam Chan, has settled in Manchester with her husband and her 5-year-old daughter since October 2021. They may come to her assistance in Manchester. She would stay at her cousin’s home for 1 month, during which she would look for and rent a 2-bedroom’s apartment in Withington M20 district at monthly rental of about $10,000 for one year first. The said district has a number of public schools available for the daughters. She plans to spend time in taking care of the daughters first. About 3 months later, she will look for some kindergarten-related jobs or be a singing or piano tutor for young children. She is a qualified kindergarten teacher and registered child care worker in Hong Kong. She has passed Grade 8 Singing and Grade 6 Piano awarded by the Associated Board of the Royal Schools of Music. In any event, she says that she has total assets of about $1 million which is sufficient to cover the living expenses of her and the daughters for a few years. 24.I have to bluntly say that I hold the overall impression that the mother’s relocation plan is tossing and turning, not well-thought and not well-researched, demonstrated by the following observations of the court. 25.First, the mother came up with the idea to move to England in March 2021. Merely about 6 months later on 4 August 2021, she filed her application for relocation. Yet, despite the lapse of time and her then suggestion that she intended to leave Hong Kong with the children by August 2022, she had not even decided which city in England they would be moving to. In the statement as to the arrangement of the children (Form 2B) filed on the same date of her summons, she revealed that it was yet “to be decided” (待定) as to where to live and where to study. No further details as to her relocation plan was provided to the court. 26.She finally revealed in her affirmation of 21 September 2021 that she planned to take the children to live in Nottingham. She explained that the father’s elder sister (“paternal aunt”) and her family has already settled down in Nottingham since July 2021, and that her cousin, Madam Chan, would relocate to Nottingham in October 2021,[3] hinting that she would have support from them there and then. She said that her elder sister would go to England with her, and she planned to rent a house of 2 or 3 bedroom and close to the school(s) of the children at rental of about $7,000 per month. 27.However, merely 3 months later, she changed her plan. By her affirmation dated 30 December 2021, she deposed that she would move to Manchester instead of Nottingham, and that her elder sister would not join her to Manchester any more. She did not expressly explain why there was a sudden change of her plan. But according to the social investigation report dated 3 January 2022 and prepared by the SWO, it was because she found out that the paternal aunt did not support her relocation plan. 28.The point to be taken is that it is unlikely that the mother had asked or discussed with the paternal aunt of her intended relocation to Nottingham before she jumped to her wishful thinking that the paternal aunt would provide support to her in Nottingham. Even more so, I am convicted to say that the mother had not spoken with the paternal aunt, before she made up her mind in September 2021 to go to Nottingham, to seek some useful and first-hand information about Nottingham and how to adapt to the new life there as a Hongkonger with young children, which in my view, is necessary and down-to-earth information that she should have sought beforehand. 29.It seems clear to me that she has not solicited first-hand information and necessary information about Manchester from her cousin or her secondary school mate, for if she has, she would have provided such details in the aforesaid affirmation of 30 December 2021. She does not even mention that her cousin has another property in Manchester which may be rented out to her on a short term or long term basis.[4] 30.Her so-called research into and about Nottingham or Manchester is confined strictly to some online information obtained from various unofficial websites. However, the accuracy, applicability and comparativeness of such online information to her case is yet to be known or proven. 31.All these regrettably reflect badly on the lack of and/or the insufficiency of the ground work or preparation undertaken by the mother before she took out this application. 32.Second, I have grave concern as to the financial arrangement of the mother and the daughters on relocation, which is elaborated in the following. 33.To begin with, she deposes in her affirmation that she intends not to work but would focus on taking care of the daughters first upon relocation. She further deposes that her assets of about $1 million is sufficient to let her and the daughters sustain “for a few years”. Yet she contradicts herself in her oral evidence when she says that she plans to work “3 months” after arriving at England. She adds that if she does not work, there will not be extra income. This raises a real concern of the court on the sufficiency of her financial resources to spend in a new country where she has never lived or worked before, made worse by the fact that she has to take care of 2 young children at the same time. 34.Further, she has to concede that according to the financial documents and bank accounts disclosed by her, she does not have total assets of about $1 million. She has about $900,000 only, with breakdowns as follows:
35.Importantly, the above table shows that about 1/3 of her total assets is her MPF, which is not yet liquidated nor available for her immediate disposal until she reaches retirement age or successfully obtains her UK citizenship. Her cash reserve is merely $219,177.67. She has to sell all her stocks and investment, after which she will have about $611,100 for her immediate disposal in Manchester, far from her original claim of $1 million. 36.During her oral evidence, she alleges, also for the first time, that she has an investment in some industrial buildings in Hong Kong worth of about $300,000 and yielding her a monthly return of $4,000, and some other stock investment worth of about $100,000. Yet, this is her mere oral assertions without a single piece of documentary proof. 37.Even if (merely assuming that) she really has such investment in industrial buildings and other stock account(s), it is unexplained why she fails to disclose such investment/assets to the court beforehand. She merely proffers that she had not prepared her affirmations all-rounded enough. However, I do not accept this excuse. Since her first supporting affirmation on relocation is too simple and lacking details, I have given specific directions for her to file a supplemental affirmation on, inter alia, the financial arrangement in support of her application. 38.It is thus clear to me that the mother has not taken her application and the preparation for it seriously, for if she had, she would not have omitted in her various affirmations her alleged investment in industrial buildings and other stock account(s). This in turn reflects badly on the mother and raises a true concern of this court as to how well and sufficient she has prepared for her intended relocation with the daughters to England. 39.On the other hand, she puts forward some online and unofficial information, such as rental expenses in Manchester are 74.96% lower than in Hong Kong; groceries prices in Hong Kong are 14.06% higher than in Manchester. However, I repeat my observation at [30] of this judgment. Even worse, she has failed to give an estimated budget on the daily costs that she and the daughters would have to spend in Manchester. Again, this shows the lack of preparation on her part. 40.Merely for the sake of discussion, she proffers that the rental expenses of renting a 2-bedroom and 1-toilet apartment in the Withington District is about $10,000 per month. It is common knowledge that since she is a new comer and does not have any work in England yet, the landlord would usually require her to pay one full year of rental upfront. This would take her $120,000. There will also be costs of moving her and the daughters’ stuff from Hong Kong to Manchester, air tickets, new furniture and electrical appliances for the new home in Manchester, which may very likely cost her another $100,000. These items altogether may already take up roughly 36% of $611,110, leaving her about $391,100 to cater for daily general expenses, her personal expenses and the children’s expenses until an indefinite date that she may get a job in England. 41.I have grave concern if the mother has ever addressed her mind as to the financial arrangement in case of any emergency, such as a sudden illness and operation, when substantial amount of money is required. Should such an emergency arise, I have real doubt that she would have sufficient financial resources to deal with the problem. 42.The mother is obviously mindful of her financial constraint. As a result, she tells the SWO and the court that she will not pay for the fees or any part of the fees of an international social investigation report of Manchester. This leads to the unsatisfactory situation that the court is deprived of an independent report on the accommodation and education aspects of the daughters if they were to go to live in Manchester. 43.Third, the mother did not inform the father of her intention to move to England, let alone other details or arrangement of the daughters upon relocation, despite the fact that the father is an equal joint custodian parent. She has not discussed with him of his access to the daughters after their intended relocation, and/or whether she would arrange to fly the daughters back to Hong Kong during long holidays in order for them to keep in contact with him, which is in the best interest of the daughters. This shows that she has not made sufficient planning before her intended relocation. 44.Due to the matters set out above, I conclude that the mother’s relocation proposal is tossing and turning, and is not viable nor realistic financially. Social investigation reports 45.Two social investigation reports (“SIR”) are prepared in this case:
46.The SWO attended the trial to give evidence. In gist, she does not support the relocation application of the mother. Her investigation/view can be summarised as follows:
47.Upon due consideration, I find the SWO has carried out an all-round and objective investigation into the relocation application. Her opinion and recommendation is logical. I shall adhere great weight to her view. Wishes of the daughters 48.The SWO met the 2 daughters individually on 2 separate occasions in November 2021 and December 2021 to ascertain their view on relocating to England. 49.The elder daughter says that she wants to go to live and study in England. Although she is not aware of the curriculum or academic subjects in England, the mother “told her that there would not be many homework and examinations if studying in England.” She also informs the SWO that she visited Canada when she was 8 years old, and stayed at her friend’s 3-storey house. She anticipates that her living environment in England would be similar to that of her friend in Canada, ie living in a big house consisting of 6 to 7 bedrooms, and front and back yards/gardens. She would have a lot of space to store her toys. However, when the SWO tells her that they may have to stay at the cousin’s home temporarily,
50.She understands that if she leaves Hong Kong for England, it will be difficult for her to see the father face to face; she will have to rely on video calls. She expressly says that she is going to miss the father and paternal grandparents, and even more her classmates and friends of the Red Cross in Hong Kong. 51.According to the SWO, the younger daughter “responds coldly and reacts calmly” (「反應冷淡，表現平靜」). She recalls the same trip to Canada when she was young and anticipates that in England, she would be living in a similar big house as her friend in Canada and that she would have her own bedroom. If both the mother and elder sister would go to live in England, she would go with them because she does not want to part with them. However, she would like the father and the paternal grandparents “to relocate to England together” with her, for if not, she would “miss them a lot” if they merely communicate with each other via video calls. Although she is worried about the changes after moving to England, she still fantasises going to live there. 52.When the SWO asks about her current school, the younger daughter shows her happiness (「表現開心之情」). She tells the SWO that her school has a big sportsground. Her favourite subjects are Chinese, Physical Exercise and Arts. The teachers are very nice to her and she has a lot of good friends at her school. She would not bear to leave (「不捨得」) them when she moves to England. 53.The mother does not challenge the above is the conversation between the SWO and the daughters. She says that it is normal that the daughters would be missing the father, paternal grandparents and friends when they have to leave Hong Kong for England. On the whole, the mother says, it is the clear wishes of the daughters to live and study in England. 54.In considering the wishes of the daughters of this case, I take into account the following matters. 55.First, it is trite to say that the older the child is, the more weight the court should place on the child’s view. 56.In YSYM v LKB, CAMP 24/2020, [2020] HKCA 586, a case cited by the mother, the children were 13 and 12 respectively at the time of the trial. They had expressed their strong, rational and articulated wishes to move to Canada for education with their mother (who would work in Canada on working visa with a view to apply for permanent residency in Canada). The Family Court refused the mother’s application for removal. On appeal by the mother, the Court of Appeal allowed the appeal and the removal application, and was of the view that the wishes of the children (who were then over 10 years old) to study overseas in Canada should not have been discounted. 57.Kwan VP in her judgment cited with approval what Rix LJ said at §§57 and 58 in Re R (Residence Order) [2010] 1 FLR 509,
58.In our case, the elder daughter is 10 years old and the younger daughter is merely 8. The court has reservation that they are mature enough to be able to appreciate what they will have to face in terms of the changes in their life and education if they are to be relocated to England. 59.Second, I am of the view that they are not equipped with sufficient information before they form any view on the intended relocation. This can be easily demonstrated by their wrong assumption that once when they are relocated to England, they will be living in a big house, like that of their friend in Canada, with their own bedroom, and front yard and back yard. Obviously, the mother has not told them that they would at first have to live in a small bedroom at their cousin’s house upon arriving at England. And even if they are later able to rent their own place, the accommodation suggested by the mother in her affirmation is a merely 2 bedrooms and 1 toilet apartment. 60.It follows that any view expressed by them to the SWO that they want to live in England is not, on the balance of probabilities, an informed decision, and thus I conclude that I should place little, if any, weight on it. Appraisal of the father’s opposition 61.The grounds of opposition of the father are set out at [2] above. On the whole, I accept that his opposition is genuine in the sense that he really has true concern for the arrangement of the daughters in England. 62.Indisputably, the mother enjoys stronger child-caring support in Hong Kong than in England. In Hong Kong, she lives with her elder sister and has the service of a maid. On weekends, the daughters would be taken care of by the father. But in England, there will only be her cousin who has her own family and her own business to take care of. Her secondary school mate and her husband cannot be said as somebody who know the daughters well, because even according to the mother, they have not met the daughters since 2019. 63.Besides, the daughters are not trained to be sufficiently independent in their daily activities. They do not need to cook. They are mainly escorted by the maid in travelling around for different activities, as the mother says that she is worried about them travelling on their own. With such reliance and/or lack of independency, the court has real concern of their adaptation in their day-to-day life in England, when there is no maid around and when the mother will have to work (as this is her plan to start working about 3 months after moving to England). Impact on the mother if her application is refused 64.I do not opine that there will be any negative impact on the mother if the application is refused. As said above, this is not one of those cases where the applicant parent is home-returning. The mother’s immediate family (ie her elder sister and her mother) are in Hong Kong. She has a steady job here. According to her, she will remain in Hong Kong if the court does not approve of the relocation of the daughters, though she says that she will apply again in the future. Relationship with each parent and other persons 65.There is no doubt that the daughters are close to both parents who love them very much. It is also very obvious from the SIR that the daughters have very good and close relationships with the paternal grandparents. Further, they have good friends at school in Hong Kong. Removing them away from such circle of close relationship is unlikely to be in their best interest. Emotional and educational needs of the daughters 66.In this trial, the mother repeatedly emphasises that it is for the education good of the daughters that she has decided to go to England with them. She proffers that the overseas education system suits the daughters, especially the elder daughter, better. 67.To begin with, the current school of the daughters is chosen by the mother. It is a prestigious school in Tsim Sha Tsui which allows the students to have a “through-train” from its primary school to its secondary school. The school teachers already tell the SWO that both daughters have no problem in securing a place in the secondary school. This is despite the fact that the elder daughter was found dozing off in classes and that she was found to have failed in the subjects of English and Science. 68.Further, there is no evidence before the court that the daughters do not like their current school. On the contrary, they have established good friendship with their classmates and friends in Hong Kong. The elder daughter tells the SWO that she will miss more her classmates and friends in Hong Kong if she is to go to live in England. The younger daughter is very fond of her school in Hong Kong. One may see the obvious change in her reaction when the topic of her school was brought up by the SWO (See: [51]-[52] above). 69.In my view, keeping the daughters in a stable and familiar education environment at this stage is in their best interest. Best interest of the daughters 70.Having considered all the relevant matters, in particularly stated above, I come to the conclusion that it is not in the best interest of daughters to be relocated to England. The mother’s application should be dismissed. Conclusion 71.For all the matters aforesaid, I dismiss the relocation application of the mother. 72.Since this is a children’s matter, I shall make the usual order that there will be no order as to costs of the mother’s applications, including all costs reserved. This is an order nisi to be made absolute at the expiration of 14 days.
Petitioner (mother) : acting in person and present Respondent (father) : acting in person and present | |||||||||||||||||||||||||
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