Rm (Aka Rh) v. Srm

FCMC 7451/2016

[2024] HKFC 189

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 7451 OF 2016

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JUDGMENT
(Variation of Care and Control and Relocation)

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Introduction

1.This is a relocation application of the petitioner mother. She is currently living in Japan and her younger son is living in Hong Kong with his father, the respondent in the present proceedings. By her application, she seeks to have this son to be permanently relocated to Japan.

2.In this judgment, I shall refer to the petitioner and the respondent as “the mother” and “the father”. There are two children of the family, both are boys. I shall refer to the eldest son as “G” and the younger one as “L”, the subject of the present application. G was born in March 2004 and is now 20 years old. L, born in August 2012, is now 12 years.

3.This application is already the mother’s 3^rd application.

4.Her first application was taken out on 23 January 2015 and was dismissed by Deputy Judge Susan Wong (under FCMC 8500/2014) after a 11-day trial: see Judgment dated 7 September 2016 (“the 1^st Relocation Judgment”).

5.The second application was taken out on 27 October 2017. That application again met with a dismissal after a 7-day trial before this Court. The reasons are contained in my Judgment dated 18 December 2019 (“the 2^nd Relocation Judgment”).

6.The third application now before me was taken out by the mother on 20 September 2022. As we all knew in retrospect, it was a time when the world was approaching the end of the long stricken Covid-19 pandemic.

Parties’ Background

7.At this juncture, it is necessary to set out the parties’ background and the intervening events leading to this present application.

8.The mother is Japanese and the father British. They met in Germany in 1999 when the mother was working and the father was on a business trip there. They soon started a relationship. In 2004, the mother moved to join the father in the UK where they were married in March 2004. A week later, G was born.

9.In 2007, the father was offered a job in Hong Kong and the whole family moved to settle here. Subsequently, L, the younger son, was born in August 2012 in Hong Kong.

10.Sadly, the marriage did not last long. In the summer of 2013 the mother, taking the boys with her, moved out of the former matrimonial home and stayed at her boy friend’s apartment. I shall refer to the boy friend as “Mr Y”. Mr Y is Japanese and at that time was working in a bank in Hong Kong.

11.The mother petitioned for divorce on 27 June 2014 (under FCMC 8500/2014) on the ground of the father’s unreasonable behaviour. The father defended and cross-petitioned on the ground of the mother’s adultery.

12.On 23 January 2015, the mother took out her first application to have the boys relocated to Japan. This led to the 1^st Relocation Judgment. At that time, her claimed intention was to re-settle in Japan and she wanted the boys to go with her. She claimed she would live with her parents in the Kisarazu City of Chiba and the grandparents would be available to assist both financially and physically in taking care take of the boys.

13.As referred to above, this 1^st relocation application was refused by Deputy Judge Susan Wong on 7 September 2016 who at the same time granted the joint custody of the boys to the parties with care and control to the father and reasonable access to the mother.

14.Three weeks later, the mother returned to Japan alone for good. As it turned out, the mother was not joining her parents; she joined her boy friend instead.

15.In the meantime, the parties came to an agreement that the divorce main suit be started afresh and proceeded on the ground of 2 years’ separation. Consequently, a new petition (under the present case reference) was taken out by the mother on 16 June 2016.

16.The parties had further been able to come to a settlement over the financial matters which was endorsed by way of a consent order on 31 May 2017. In brief, the parties agreed to have their property in London sold with the sale proceeds to be shared equally. The capital split was $1.75 million each.

17.Decree nisi was granted on 9 January 2017; it was made absolute on 16 June 2017.

18.About 4 months later, the mother took out her 2^nd relocation application. By then, the mother had already resettled in Japan with Mr Y and the boys remained in Hong Kong under the care of the father.

19.At the very beginning, the mother’s 2^nd relocation application covered both of the boys, as was the case in her 1^st relocation application.

20.At the Children Dispute Resolution Hearing of 25 May 2018, the mother dropped her application in respect of G but continued to pursue her application in respect of L.

21.By the 2^nd Relocation Judgment handed down by this court on 18 December 2019, I refused the mother’s application for relocation and instead granted generous access her, including the mother having 2/3 of the time of the winter break for access and half of the time during the boys’ other long holidays.

22.When the judgment was handed down in December 2019, no one would have known that in just a few months’ time the world would be turned upside down and come to a standstill for the next 3 years. It is therefore necessary to have the relevant events set out below.

Events Post-2^nd Relocation Judgment

23.Shortly after the 2^nd Relocation Judgment, L left for Japan on 8 January 2020 for contact with the mother. That was the time the world was at the verge of outbreak of the Pandemic. As a result, what initially meant to be a short holiday turned out to be a much longer one. Upon the urgent application of the mother – shortly after the outbreak of the Pandemic on 25 February 2020 – I allowed L to stay with the mother until 2 days before the official resumption of class in Hong Kong, which, according to the Education Bureau, should be around Mid of March 2020. At that time, little was known about the virus, except that the virus was of high contagion and mortality rates. When I made the order, I made myself clear that my main concern was if it was safe for L to travel back to Hong Kong on his own.

24.L eventually returned to Hong Kong on 18 May 2020. It seemed it is not in dispute that thereafter the father and the boys spent much of their time in Thailand, Portugal and the UK. At the relevant time, due to the travel restrictions imposed by both Hong Kong and Japan the mother was prevented from having physical access to L. Fortunately, the mother was able to maintain regular electronic contacts.

25.Finally, on 31 December 2021, G and L travelled from the UK to Japan for the mother’s holiday access. L stayed there for almost 2 months, until he travelled with G and the father to Phuket for holiday.

26.In January 2022, the mother remarried with Mr Y.

27.On 25 March 2022, L returned to Japan to stay with the mother as schools were suspended again in Hong Kong.

28.L was originally scheduled to travel to Sydney to meet G and the father on 14 April 2022, but he did not end up going. The mother’s case is L wanted to stay with her and refused to go to the airport despite much persuasion from her and Mr Y.

29.This led to the father travelling to Japan on 30 April 2022 to demand for L’s return. The father had to go to extreme lengths to obtain a special visa and received further vaccination in Australia so as to allow him to enter Japan on urgent grounds and with quarantine exempted.

30.At about the same time, the mother filed an application on 6 May 2022 to the Japanese court for the change of care and control of L.

31.On 9 May 2022, the mother enrolled L to an international school, referred to as “the H International School”.

32.On 20 June 2022, the father commenced a Hague Proceeding (“the Hague Proceedings”) in Japan for L’s return to Hong Kong. The mother’s application for change of care and control was stayed pending the Hague proceedings.

33.On 5 August 2022, the Tokyo Family Court handed down its judgment (“the Hague Judgment”) on the Hague Proceedings. The Tokyo Family Court ruled in favour of the father.

34.On 23 August 2022, the mother lodged an appeal against the Hague Judgment, which was refused on 13 December 2022.

35.Meanwhile, on 20 September 2022, the mother took out this 3^rd application for relocation at this court. Her application included a variation of the care and control in her favour.

36.On 16 January 2023, this court ordered, inter alia, that the mother was to return L to Hong Kong by 13 February 2023.

37.L eventually returned to Hong Kong on 10 February 2023, re-joined his father and returned to the same international school, being referred to as “the A School” in the 2^nd Relocation Judgment. I shall adopt the same abbreviation.

38.Thus, what was initially planned to be a short trip ended up lasting for almost a year.

The Present Situation of the Parties

39.The parties’ current situation is largely the same as that in the 2^nd Relocation Judgment.

The Father’s Current Situation

40.The father has moved from Shatin to Lantau. His current home is apparently a much improved one: it is a leased house close by a beach with around 2,300 ft². Mr Lam, the social investigation officer, described the living condition as “desirable”.

41.The father continues to live with L, his girlfriend Ms K and G when he returns to Hong Kong for vacation. As I mentioned in the 2^nd Relocation Judgment, Ms K is Japanese with whom the father started a relationship in 2015 and was introduced to the boys in the summer of 2016. As Ms K does not have any right to reside in Hong Kong, she has been travelling between Hong Kong and Japan and has been staying with the family on an interval of about 3 months each. Ms K had attended an international school in Japan before she received university education in Seattle and Hawaii. She has a bachelor and a master’s degree and is a qualified nurse practitioner. She used to work for a clinical research company in Tokyo. She plans to seek employment in Hong Kong. The father and Ms K are being assisted by a domestic helper in household chores.

42.There has not been any change in the father’s employment except that he has been elevated to the position of vice-president. He is able to work from home 3 to 4 days a week. He is required to have overseas business trips occasionally.

43.As mentioned above, L returned to the A School upon returning to Hong Kong in February 2023, a time when everyone’s life shortly returned to normal after the Pandemic. Same as his elder brother G, L has a keen interest in football. He attends football training after school and has joined a Soccer School.

44.G is already 20 years old. He is currently attending Year 2 University at the UK, majoring in Sports Business Management. He plans to stay in the UK or Europe for his career. In the meantime, he regularly returns to Hong Kong during school holidays.

The Mother’s Current Situation

45.The mother’s current situation is the same as before. She married with Mr Y in January 2022 . She and Mr Y continue to live at a house in Yokohama that she purchased in May 2017. The house is a two-storey 4-bedroom house with a total floor area of about 1,000 ft².

46.The mother is still working full-time as an assistant manager for a large motors corporation in Tokyo. Her company adopts a work-from-home policy; she is only required to return to the office twice a week at most; she claims this provides her with flexibility in looking after L.

The Mother’s Case

47.The mother’s main reason for her application is to give effect to L’s strong wishes to live with her: L stated his wish clearly to everyone whether in Japan or in Hong Kong. At trial, the mother testified that if it had not been for L’s strong wishes she would not have made the present application.

48.I am aware that the mother said in evidence that L had some issues in Hong Kong when being taken care of by the father. She mentioned L once made a private part out of some clay (I take it to be an art-piece) and presented it to a girl in school. The mother admitted that she did not mention this in any of her affirmation nor were there any particulars. In my view, assuming this incident did really take place (it is not my finding), if this really caused a concern on the part of the mother, there is no reason why she did not mention it. In any event, this incident so alleged by her is not part of the reason for her application.

The Father’s Case

49.The father questions the genuineness of the mother’s application. She repeatedly made unmeritorious applications in the absence of any changes in material circumstances. The father alleges what happened in 2022 was an abduction scheme engineered by the mother. An example raised by the father was the mother had plans to place L into the H International School as early as in January 2022 even before L’s arrival. The mother kept L against his will. From April 2022 to February 2023 was a period marked by legal violations on the part of the mother and emotional stress for L. There was also manipulation or brainwashing by the mother. L was subjected to an “extreme amount of stress” while he was staying with his mother.

Issue to be Determined

50.While the mother also has an application to vary the care and control, in essence, the single issue to be determined at trial is should L be allowed to join his mother in Japan for good.

Witnesses and Evidence

51.The court heard evidence from the mother, the father, Mr Y, Ms K, and the social investigation officer Mr Lam.

52.Apart from the parties’ affirmations, also before this court were the Hague Judgment, an Investigation Report prepared for the Hague Proceedings, the social investigation report dated 27 May 2023 (“the SIR”) prepared by Mr Lam with an International Social Investigation Report of 19 May 2023 (“the ISIR”) annexed.

53.At this point, I have to mention that Mr Lam did not support the mother’s application. This conclusion was made with the benefit of the ISIR. His main reason was that L had settled well in Hong Kong after his return in February 2023. His school teacher observed that L’s school performance was satisfactory and he had good relationship with both teachers and schoolmates. L had also returned to his daily routine. The father, the primary carer for L since 2016, had been providing proper care to L and they related well. Mr Lam saw L’s needs could be better addressed by maintaining close ties with his birthplace, peers and schooling.

54.Mr Lam remained firm in his position when being cross-examined by Ms Chong, counsel for the mother.

55.I am aware that the ISIR was supportive of the mother’s application but the conclusion was reached without any input from the father’s side.

G’s unsworn statement

56.The father produced an unsworn statement allegedly given by G opposing the mother’s application. One of the points made in the statement was that his relationship had been somewhat distant since 2017, ie the mother’s 1^st Relocation Application. As this was an unsworn statement and G was not cross-examined on the veracity of his statement or the facts stated on it, I give no weight on its contents.

Applicable Legal Principles

57.The applicable legal principles remain unchanged. I repeat the applicable legal principles as follows.

58.On relocation cases, the Court of Appeal, in SMM v. TWM (Child: Relocation) [2010] 4 HKLRD 37, followed the approach enunciated by Thorpe LJ in the English Court of Appeal case of Payne v Payne [2001] EWCA Civ 166, [2001] 1 FLR 1052. Cheung JA said the following:

“The principles

19. The parties agreed that the applicable principles governing relocation application are based on the Payne v. Payne [2001] Fam 473 line of cases. They are English Court of Appeal cases. There is no House of Lords’ decision on this issue. These principles have been applied in Hong Kong, for example, in M v. B (Removal of children from the Jurisdiction) [2009] HKFLR 349, by Judge Bruno Chan although there has not been any Hong Kong Court of Appeal decision on relocation applications.

20. Payne is based on the earlier decision of Poel v. Poel [1970] 1 WLR 1469. In Re G. (Leave to remove) [2008] 1 FLR 1587 the English Court of Appeal reaffirmed the principles in Payne.

21. The principles in Payne can be summarised as follows :

(a) The distinct features of a relocation application are first, the applicant is invariably the mother and the primary carer; second, generally the motivation for the move arises out of her remarriage or her urge to return home; and third, the father’s opposition is commonly founded on a resultant reduction in contact and influence. (per Thorpe LJ at paragraph 27)

(b) The two propositions that have been consistently applied by the Courts are, first, the welfare of the child is the paramount consideration; and second, refusing the primary carer’s reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the Court concludes that it is incompatible with the welfare of the children. (per Thorpe LJ at paragraph 26)

(c) The application should be approached as follows :

(i) Is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life? Then ask, is the mother’s application realistic, i.e. founded on practical proposals both well researched and investigated? If the application fails either of these tests, refusal will inevitably follow.

(ii) If, however, the application passes these tests then there must be a careful appraisal of the father’s opposition: is it motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?

(iii) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?

(iv) The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist in so far as appropriate. (per Thorpe LJ at paragraph 40)

(d) In short, the relevant factors are :

(i) The welfare of the child is always paramount.

(ii) There is no presumption created by section 13(1)(b) of the English Children Act 1989 in favour of the applicant parent.

(iii) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.

(iv) Consequently the proposals have to be scrutinised with care and the Court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.

(v) The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.

(vi) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.

(vii) The opportunity for continuing contact between the child and the parent left behind may be very significant. (per Butler-Sloss P at paragraph 85)

59.There were some debates in the UK on whether the guidance set out by Thorpe LJ in para 40 of Payne v Payne applies only to cases where the applicant is the primary carer or whether there is a covert presumption in favour of the primary carer. In Re TC and JC (Children: Relocation) [2013] EWHC 292 (Fam), [2013] 2 FLR 484, Mostyn J said the following:

“10. The foundation of the jurisprudence in this field is the well-known case of Poel v Poel [1970] 1 WLR 1469. Although there were many other subsequent decisions of the Court of Appeal the next major milestone was the case of Payne v Payne [2001] EWCA Civ 166, [2001] Fam 473, [2001] 1 FLR 1052, where Thorpe LJ set out his memorable "discipline" in para 40. That decision was controversial, at least in some quarters, for arguably perpetuating a covert presumption in favour of location, at least where the application was made by the child's primary carer. It was reconsidered in 2011 in the case of K v K (Children: Permanent Removal from Jurisdiction) [2011] EWCA Civ 793, [2012] Fam 134, …”

60.In ZJ v XWN (Leave to Appeal: Child Relocation) [2018] 3 HKLRD 644, [2018] HKCA 436, CAMP 67/2018, the Court of Appeal, after having reviewed K v K (Children: Permanent Removal from Jurisdiction) [2011] EWCA Civ 793, [2012] Fam 134 and Re C (A Child) (Internal Relocation) [2016] Fam 253, confirmed that the only principle of law enunciated in Payne is that the best interests of the child is paramount and the rests is guidance and that Cheung JA’s comments in SMM v TWM should be read in that light: at [18] and [23]. The Payne guidance should not be regarded as a prescriptive blueprint: at [22].

61.The Court of Appeal endorsed what Vos LJ said in Re C (A Child) (Internal Relocation) at [82] and [83],

82. I add a few words in an attempt to summarise the position that has now been reached. As counsel before us agreed, in cases concerning either external or internal relocation the only test that the court applies is the paramount principle as to the welfare of the child. The application of that test involves a holistic balancing exercise undertaken with the assistance, by analogy, of the welfare checklist, even where it is not statutorily applicable. The exercise is not a linear one. It involves balancing all the relevant factors, which may vary hugely from case to case, weighing one against the other, with the objective of determining which of the available options best meets the requirement to afford paramount consideration to the welfare of the child. It is no part of this exercise to regard a decision in favour or against any particular available option as exceptional.

83. One of the most difficult aspects of this case has been to establish in the light of previous authority what use, if any, should be made in the process we have just described of the 4 “disciplines” identified by Thorpe LJ at paragraph 40 of his judgment in Payne v. Payne ([2001] EWCA Civ 166, [2001] 1 FLR 1052) (the “ Payne factors”). In my judgment, one of the valid concerns about the Payne factors is that they do not adequately reflect the gender-neutral approach to these problems that the court will now adopt in every case. Whilst the Payne factors may still be of some utility in some cases, they are no part of the applicable test or the applicable principles. In some circumstances, the judge may find them useful. In others, the judge may not. If the judge finds them a useful guide to some of the factors that he should consider, he will be doing so only as part of the multi-factorial balancing exercise that is required. (emphasis added)

62.The Court of Appeal also dealt with the use of the “welfare checklist” in the balancing exercise. 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.

63.The Court of Appeal emphasized that the guidance in Payne or SMM v TWM or the welfare checklist are simply tools to assist a Family Judge in making the multifactorial assessment to reach a result which is in the best interest of the child after taking account of the potential impact on the parents: at [30]. See also B, A v B, L (Child Relocation), [2019] 4 HKLRD 23, [2019] HKCA 822.

64.Therefore, I would have to conduct a holistic balancing exercise and in doing so, I would make use of the Payne approach and the “welfare checklist’ as an aide-memoire tools.

Parties’ Allegations

65.Both parties are pointing their fingers against each other and try to have the other side’s conducts surrounding the Hague Proceedings to be examined microscopically. These allegations are nothing but clear signs of their acrimony against each other. As I said at [43] of the 2^nd Relocation Judgment, it is unnecessary for the court to come to definite findings on each and every of these allegations. What is required is for the court to come to findings on allegations that are relevant to the issues in dispute only but not further. To do otherwise would only add fuel to the already tormented relationship between the parties.

Should permission be given for L to relocate to Japan?

(1)  Is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from L’s life?

66.Mr Lam observed that the mother’s application was out of love and out of what she considered the best interest of L. There was no alienation on the part of the mother as alleged by the father. It was so reported in the SIR and the Hague Proceedings Investigation Report, too. I accept the mother’s application is to give effect to L’s wishes to stay with her. I also accept that the mother’s application is genuine and motivated by her firm belief that it serves the best interests of L.

(2)  Is the mother’s application realistic, ie founded on practical proposals both well researched and investigated?

67.The mother’s childcare plan is largely similar to the one put forward in her 2^nd Relocation Application.

68.L will continue to reside with the mother and Mr Y at her home in Yokohama. L has his own room; and has stayed at this home many, many times. The mother is able to provide hands-on care for L. Mr Y, who has had a good relationship with L, will continue to take part in the care of L.

69.Currently, in the post-Covid days, the mother is allowed to work from home 3 days a week and is required to return to the office twice a week. She is not allowed by her employer to work-from-home in Hong Kong when having access to L.

70.If the mother and Mr Y have to attend to work at the offices, her father (“the grandfather”), who lives 30-40 minutes away, can assist in taking care of L. The grandfather has in fact been doing this since 31 December 2021, and during L’s stay in Japan. The grandfather stayed overnight at the mother’s home once a month in order to spend more time with L at L’s request. The grandmother is also happy to assist in taking care of L.

Schooling and Social Life

71.The mother plans to have L to re-join the H International School. This school is nearby to the mother’s home and L should be well familiar with it. In L’s own words to Mr Lam, L was able to adjust to schooling during the Hague Proceedings.

72.When L was in Japan, he had joined an international football academy and attended training sessions 3 to 4 times a week. He made a lot of friends with his classmates, teammates and neighbours. He adjusted well to living in Japan.

Financial Sustainability

73.The mother said there would not be any financial difficulty or adverse impact on L’s living standard on relocation. She will not have the need to seek any maintenance for L in the event that her application succeeds.

74.The mother earns a basic monthly salary of JPY 467,000 (approximately HK$27,470) before tax. With her bonus, the mother earns on average around HK$44,553 per month. She is able to cover L’s living expenses.

75.Her own salary aside, Mr. Y earns around HK$52,250 per month and an extra HK$17,100 – HK$28,500 twice a year from his bonus. He gives the mother around HK$11,400 monthly to cover family expenses.

76.The father complained about the lack of proper childcare on the part of the mother when L was “stranded” in Japan, specifically, the fact that L was left at home alone and that he had to travel alone.

77.Mr Y, in response, said it was not illegal in Japan for a child to be left alone at home. He could not recall the exact number of days when these had happened. That said, Mr Y maintained that the grandfather had come to look after L. The mother explained L was just left at home for a while pending her father’s arrival.

78.Mr Y also accepted that L had travelled all by himself. It was acceptable as Japan was a safe country. It was just a 10-minute ride and L was familiar with the place.

79.In the post-Covid era, Mr Y has to return to office every day. He is required to seek permission if he wants to work from home. That being the case, he does not work from home often. He also added that it is difficult for him to take a one-week holiday. I gather this is the reason why the mother and Mr Y come to Hong Kong less often as before.

80.Mr Y admitted he had a change in his parenting style. The father challenged that the change in Mr Y’s parenting style from a typical, strict Japanese approach to a more relaxed, free approach is a kind of manipulation tactic luring L into staying in Japan. Examples given by the father was Mr Y allowed L to pay on-line games for long hours.

81.Mr Lam took the view that the mother’s plan is feasible and that according to what L said, he adjusted well in Japan. As a matter of fact, there was not any serious challenge from the father on the plan. While I am aware that the grandfather has already reached the advanced age of at least 80 years old, at the same time, L is much older (12 years of age) and should require few routine care and attention now.

82.In my view, the mother’s ability to take care of L is not an issue. The reason being that when being cross-examined by Ms Chong, the father agreed to have shared care arrangement to be in place if the mother is to relocate to Hong Kong. At the same time, the father said he is happy to make arrangements for L to stay longer with the mother in Japan. If the mother’s ability to take care of L is an issue, there is no reason why the father made such a concession. I believe all these complaints were raised because of the mother’s move to upset the status quo.

83.In the 2^nd Relocation Judgment, I said I was prepared to hold the mother’s plan was a realistic one. For the above reasons, this remains my view and I so hold.

(3)  Is the father’s opposition motivated by genuine concern for the future of the children’s welfare or is it driven by some ulterior motive?

84.The father’s case is that he has been the primary carer for L since the mother’s departure in 2016. He emphasizes that he has been a constant source of stability, and nurturing care for L which are essential for his emotional and psychological growth. It is therefore important to maintain L’s current environment to bolster his security and well-being. L’s needs could be better addressed by maintaining his close tie with his birthplace and peers and schooling.

85.Ms Chong did not dispute that the father opposition is motivated by genuine concern for L. I agree.

(4)  What would be the extent of the detriment to the father and his future relationship with L were the application granted?

86.I am sure the father, being the primary carer of L since September 2016, will be very unhappy if L is to go to Japan. However, the father’s relationship with L could be maintained by generous contacts, and there appears to have no dispute between the parties in this regard. Apart from physical access, there are, among others, Skype, Face Time and texted messages available for keeping the relationship.

87.Whilst the relationship between the father and L could still be maintained, practically speaking, it would mean the somewhat daunting exercise of commuting between Hong Kong and Yokohama would have to be carried out by L or the father (and probably by G, too) instead of by the mother.

(5)  To what extent would that detriment be offset by extension of the L’s relationships with the maternal family and homeland?

88.On this, I repeat what I said at [71] of the 2^nd Relocation Judgment,

[71] L was born in Hong Kong and has been spending his whole life here. He is a Japanese citizen by descent from his mother and it is to be seen in that context that Japan is regarded as his homeland; meanwhile, it has to be born in mind that the UK is also his homeland. The boys have no extended family from either the paternal or maternal side in Hong Kong. The maternal grandparents live in a city that is about an hour away. The mother’s brother, who is married with a young daughter and lives in Tokyo, is also about an hour away. I accept that if L moves to Japan the extension of L’s relationship with these extended family members may to a small extent compensate for the detriment to the father-children relationship.

89.This remains my view.

(6)  What would be the impact on the mother of a refusal of her realistic proposal?

90.The mother fairly accepted that given she has already returned to Japan for a number of years without her boys, if her application fails the impact on her own life plans would not be significant.

Overall, what would be in the best interest of L?

91.Even when it is found that the mother’s plan is realistic this would not be the end of the matter. The above appraisals must be brought into an overriding review of the L’s best interests as the first and paramount consideration. I consider the following factors are relevant.

L’s Health

92.The mother said L suffered from Quincke Syndrome while he was with her. After consulting a psychiatrist, L’s source of stress could be from the uncertainty of his future including the returning to Hong Kong which was against his wishes.

93.On the other hand, Ms K said the night after L returned to Hong Kong on 10 February 2023, he started to develop headaches, a fever and presented with cold-like symptoms. On one of the weeknights when L spoke to the mother in the evening before bed, he experienced insomnia and cried at night. A few days before Mr Lam’s visit, L appeared to be nervous and apprehensive with a stoic, serious look on his face, having previously heard from G meeting social investigation officer was one of his worst experience. Since the beginning of May 2023, L began to experience puffiness and itchiness in his left eye, which occasionally occurred in his right eye as well. That was after when the mother notified L that she would be coming to Hong Kong in June 2023.

94.In their usual fashion, the parties were pointing their fingers against each other for causing these health issues: on the part of the mother, she attributed these to the pressure exerted on L from the father and L was eager to stay with her; and on the part of the father, he also agreed there was pressure but the source was from the mother. As there is not any conclusive expert evidence before me, there could not be any definitive answer nor is it necessary to come to any finding. It is clear that, L, being the subject of conflicts, was caught in the middle. I have no doubt that he was extremely anxious at the time.

95.It is fortunate that L’s condition has turned to better, neither parent alleged in evidence that L is still suffering from any of these issues in any significant manner. Mr Lam reported that L had to see a psychiatrist on his anxiety after his return to Hong Kong. He considered L’s health issues in making his recommendation. According to his observation, L adjusted well upon returning to Hong Kong. He considered it is better not to make any change.

Schooling/Education

96.Mr Y said he involved heavily in L’s daily care and schooling. Every night after dinner, he and the mother spared time to go over L’s assignments. In particular, L would come to him whenever he had any questions in mathematics.

97.L’s school report card suggested his result was far from ideal.

98.The report card was issued in January 2023, the overall comment was L was “starting to meet Grade 5”. On this, Mr Y gave the explanation that L was in a different country and in a different system. I gathered what he meant was one cannot compare an apple to an orange and there was nothing to worry.

99.This point is taken up by Ms Chong who submitted in her closing that different schools have different benchmarks or curricula. Contrary to the report card of the A School which gave general comments only, the H International School report required teachers to state “area of growth” for certain subjects, where L would inevitably receive some “negative” remarks of areas in which he could do better.

100.I do not agree.

101.The assessment on L’s mathematics is alarming. He was assessed to be either beginning or developing in the 4 areas in the subject. Mr Y’s evidence in this respect is ambivalent, if not inconsistent. Mr Y admitted he felted disappointed when seeing the report. Nevertheless, he said what is most important is for L to complete his homework without any help; the importance is he was willing to study and being able to learn by himself. However, it is clear that L did not manage to complete his homework and failed to achieve with satisfactory result when Mr Y’s approach was adopted. The logical inference that can be drawn is L was not able to learn by himself when he was staying with the mother.

102.Back in Hong Kong, L did not lose time. When he returned to Hong Kong, he re-joined the A School at the same Year Level he was supposed to be. Mr Lam reported the following at para 15 of the SIR,

15. L is very sporty and enjoys good health. He is studying Year 5 at the A School. His teacher, Mr TH, commented that L had started well at the A School in 2023 for his English subject. His Mathematics was at the expected level for a Year 5 Student. L had a fantastic job when inquiring into the different planets with our solar system for his Science subject. For his social, L had made a fantastic start to school life at the A School since returning from Japan. He made many connections with his peers. He was a kind, caring and courteous student and well respected by his peers. L had a great group of friends within his homeroom but also across the Year 5 cohort. He was an active member of the extra-curricular activities at the A School and would represent the school as part of the Tag Rugby team. It would be great to see L develop this year and the teacher hoped he set his sights on a possible House Captain Leadership role for the 2024 academic year.

103.It is also the father’s evidence that since the SIR, L has been elected by his peers to be the House Captain of the school. Mr Lam’s observations were not subject to challenge by the mother. Indeed, the mother also conceded in evidence that L has been doing well at school. She had access to the school website and did not say the father had blocked her access to school information. I accept that L is currently doing very good at school.

L’s Views

104.The mother relies heavily upon L’s consistent wishes to stay in Japan. This remains to be his wishes now.

105.Ms Chong also referred to L’s handwritten letter to the father dated 5 February 2022, his messages with the mother in February 2023, his messages with G in February 2023 and messages with the mother in March 2023.

106.I accept that, on evidence, at the relevant time when L was in Japan during the Hague Proceedings and for a short period of time after his return on 10 February 2023, L expressed strong wishes of staying with his mother in Japan,.

107.Mr Lam interviewed L twice for the purpose of the mother’s application.

108.The first time was during a home visit in March 2023. L indicated that he wanted to live in Japan. L shared that he was able to adjust to schooling in Japan, related satisfactorily with his stepfather, had new friends in Japan and enjoyed his stay in Japan. L further stated that “If he could choose, he hoped to live with his mother in Japan as Japan was bigger than Hong Kong. Thus, he had a better chance to be a football player.”

109.After this interview, Mr Lam was informed by the father that L had a change in mind. Mr Lam then arranged a zoom interview with L in April 2023. The 2^nd interview was with L alone in the absence of the father. L told Mr Lam in the interview that he had a change in mind and would like to stay in Hong Kong and this decision was made after he had spoken with his elder brother. L considered that he would be able to see G more if he is to stay in Hong Kong. Mr Lam agreed to Ms Chong’s suggestion that G was instrumental in L’s change of mind.

110.Ms Chong referred me to the Court of Appeal case in YSYM v LHB [2020] HKCA 586 where the Court of Appeal quoted the following paragraphs in Re R (Residence Order) [2010] 1 FLR 509 at [71] of the Judgment,

“[71] Rix LJ had this to say in Re R (Residence Order) [2010] 1 FLR 509 at §§57 and 58:

“[57] The importance of listening to a child once he or she has reached the age of 10 … has been stressed in the authorities. Thus in Re L (A Child) (Contact: Domestic Violence) [2001] Fam 260, [2001] 2 WLR 339, [2000] 2 FLR 334 at 271-271, 347 and 340 respectively, Dame Elizabeth Butler-Sloss P sitting in this court cited with approval Contact and Domestic Violence – The Experts’ Court Report [2000] Fam Law 615 at 624 on the subject of a child’s wishes:

‘…while this needs to be assessed within the whole context of such wishes, the older the child the more seriously they should be viewed and the more insulting and discrediting to the child to have them ignored. As a rough rule we would see these as needing to be taken account of at any age; above 10 we see these as carrying considerable weight with 6-10 as an intermediate stage and at under 6 as often indistinguishable in many ways from the wishes of the main carer (assuming normal development). In domestic violence, where the child has memories of that violence we would see their wishes as warranting much more weight than in situations where no real reason for the child's resistance appears to exist.’ ” [emphasis added]

111.YSYM v LHB is a relocation/overseas education case involving two children of 12 and 13 years old. The trial judge rejected the mother’s application to have the children to attend schools in Vancouver despite (1) the unequivocal views to the Social Welfare Officer that they wished to stay with the mother and to attend schools there and (2) the support from the Social Investigation Officer. The Court of Appeal held that the court below erred in discounting the children’s wishes to study overseas, which are entirely rational, made after much thought and planning with the mother, out of the strong desire for change in light of their perceived inadequacies of their local schooling: at [72].

112.AS v CPW (Inward Return Order) [2020] EWHC 1238 (Fam), [2020] 2 FLR 1000, is an English case involving a boy of about 15-16 years old in which the father sought his son’s return to England from Sierra Leone. The boy was interviewed by an English Cafcass officer who recorded his emphatic, categorical and repeated wish to remain in Sierra Leone until the completion of his GCSEs. Mostyn J considered Gillick v West Norfolk and Wisbeck Area Health Authority and Department of Health and Social Security [1986] 1 FLR 224 and said the wishes of a Gillick-competent child on a particular issue, where they are not objectively foolish or unreasonable, should normally be given effect: at [22].

113.These authorities clearly point to the requirements that for the court to give proper weight to the views or wishes of a child on a particular issue, apart from his age, the court has to consider if the views are rational, made after much thought and planning or reasonable. These of course normally correlate with the age and level of maturity of the child concerned.

114.L’s wishes were carefully considered by the Tokyo Family Court in the Hague Proceedings.

115.The Japanese Investigation Report presented to the Tokyo Family Court for the purpose of the Hague Proceedings reported that L did not want to return to Hong Kong because Hong Kong was “suspicious and China was conquering it”. When he returned to Hong Kong, he would be forced to be vaccinated and if he caught Covid he would be tortured (referring to quarantine and it was China who made the virus).

116.On the reason why he wanted to live in Japan, L was said to have cited such things as the pleasure of playing with his friends and being able to live with his mother, and the Tokyo Family Court considered that these reasons were based on the feelings in his then present life, and did not go beyond his short-term preferences. In addition, as for his future and career path, L expressed his boyish desire to become a soccer player in the UK and to join a soccer club in Japan for that purpose and stated that he wanted to go to university in the UK just like what G did. The Tokyo Family Court said it cannot be found that L was able to consider his own interest based on a mid-to-long-term perspective.

117.The Tokyo Family Court found that before L showed his intention to stay in Japan, in January and February 2022, L was introduced to international schools in Japan, and enrolled in a soccer club. On 1 March 2022, the mother sent an email to the father to the effect that she should be permitted to live with L for the period until he has graduated from junior high school or high school. The Tokyo Family Court said “it would be found that preparations were being made by the mother so that L could be moved to Japan”. Further, on 14 April 2022, when L indicated his intention to live with her, the mother did not disagree with L’s intention and, without much consultation with the father who had the care and control of L, she promptly enrolled L to the H International School and applied to the Japanese Family Court for change of the care and control of L. It was held by the Tokyo Family Court that the mother, consciously or unconsciously, likely affected the formation of the intention of L’s refusal to be returned to Hong Kong.

118.At the time when L first expressed his wishes and being interviewed by the Japanese investigators, he was still below the age of 10. When Mr Lam interviewed him, he was about the age of 11. In some cases, children of this age might be able to give his well thought-out and articulated views. However, it is not the case for L here. The evidence is L’s views swung back and forth, susceptible to change easily upon hearing encouragement or advices from family members. It seems to me clear that L was still immature. Hence, I have come to the same conclusion as the Tokyo Family Court did.

119.The change of wishes must be seen in light of the circumstances that L was in at the time. For 3 years from 2020 to 2022 the world was under the rampage of Covid 19. Everyone’s memories regarding suspension of school and social activities, closure of borders, social distancing, work from home, vaccinations, and other restrictions are still vivid. Everyone was very much homebound. L’s face-to-face schooling in Hong Kong had been suspended from time to time and traveling was very much restricted. In contrast, he was able to attend school in Japan physically. He was able to attend activities by train on his own as opposed to the presumably more restricted life in Hong Kong. On that view, the life back then was “abnormal”.

120.I accept it is important to give effect to the wishes of the child concerned, in particular, if the proposal is supported by the recommendation of the Social Investigation Officer. This, however, is not the case here.

121.In conclusion, for the reasons aforesaid, I give little weight to L’s wishes or views.

Brainwashing

122.The father accused the mother to have influenced L’s views while he was in Japan. Indeed, the father went so far as to say that the mother brainwashed L. She gave L the false hope of becoming a football player in Japan in order to keep him.

123.Mr Lam testified that when he interviewed L, he did not particularly notice anything wrong. He did not see any signs of toxic parenting or brainwashing as alleged by the father. There is no evidence of brainwashing on the part of the father.

Sibling Bonding

124.Ms Chong submitted that one of the reasons why the mother’s 2^nd Relocation Application was rejected was the court’s reluctance to affect the close bonding between G and L when they were attending the same school and enjoying the same sport. However, this factor is largely diminished, as G has been studying in university in the UK since 2022.

125.The mother agreed that the father should have ½ of the long holidays and 2/3 of the winter break for access – the same as what she was granted under the 2^nd Relocation Judgment. She said L should be able to effectively maintain his contact and relationship with his elder brother during school holidays if relocation is granted.

126.It is also emphasised by Ms Chong that since G has no plan of returning to Hong Kong for career upon completion of his university in the summer of 2025, there is no difference in terms of time when L is able to see G if L is relocated to Japan.

127.I accept that theoretically speaking, in terms of the time slots, this may be the case. However, how the situation in reality turns out to be depends very much on the timetables and whereabouts of the family members. I thus give little weight to this factor.

Racial Prejudice in Japan

128.The father claimed L was verbally abused as a “fat white pig” and said L had experienced racial prejudice. I would not place much weight on this as, even if it really happened, it was a single incident arising from a one-off argument between children and this could happen anywhere in the world.

What is the Decision?

129.Mr Lam is a highly experience professional in his field. He has been with the Social Welfare Department for 29 years. Before joining the Children Protection Section more than a year ago, he had served in various posts including Boys’ Home and as a probation officer.

130.Mr Lam observed the relationship between L and the mother to be natural, close, warm, affectionate and interactive. At the same time, L loved both his parents. It was a difficult decision for L. At the end, Mr Lam concluded that the mother’s relocation application is not support-worthy at the present stage and considered that L should continue to be under the care of the father in Hong Kong.

131.I accept that L settled well in Japan in 2022; so does he presently. L currently has a well-settled and stable life in Hong Kong. He has been doing well in school.

132.I also accept the mother was L’s primary carer during L’s sojourn in Japan. This lasted for about 10 months. Before then, the mother was not the primary carer. However, it should not be forgotten that, as I said above, it was a time when life was not normal. Both the mother and Mr Y now have to return to work at the office more often than before.

133.With L’s life has returned to normal, in my view, the question is what are the benefits to be gained in terms of L’s best interest if he is to relocate to Japan? The mother certainly has not convinced me that there are and I cannot think of any either.

134.I repeat what I said at [98] of the 2^nd Relocation Judgment: generally speaking if the status quo is found to be working satisfactorily the courts will be reluctant to intervene: see also HH Judge Melloy’s judgment in F v L, FCMC 11896/2005, (date of judgment: 7 June 2007) at [34]. It is of course not a statement of principle but surely, there is wisdom in it.

135.The father is a significant person in L’s life. He impressed me as always having been a loving and caring father. It also remains my view that the father is a more compassionate person who would be more responsive to his sons’ needs and feelings. The father demonstrated himself to be a dedicated father by circumventing all hurtles in getting into Japan for claiming the return of L.

136.The combination of all the above considerations compellingly point to a conclusion that it is not to L’s benefit if he is to move to a new environment. For the above reasons, the mother’s relocation application has to be refused.

137.With the conclusion I have come to, it is not necessary to come to any finding on the parties’ other allegations, such as, what happened when L departed from the airport for returning to Hong Kong in April 2023 after the mother’s failure in the Hague Proceedings, whether L wanted to go to the UK for the Life Celebration of his grandmother in July 2022 during the Hague Proceedings and if the mother surreptitiously changed G and L’s surname from the father’s to that of the mother on their Japanese passports when she knew well that the Japanese authorities allowed both surnames to appear on the documents.

Access

138.The current access arrangement made by this court under the 2^nd Relocation Judgment is that the mother is to have access in weekends (from Friday to Sunday) for not more than twice per month during school days. In addition, the mother has half of the time of L’s long holidays for access except that she has 2/3 of the time of the winter break for access. The intention was to give the mother more time than the father to stay with L during school holidays. There was also the understanding that the mother would fly to Hong Kong for the weekend access and for the boys to fly to Japan during school holidays.

139.It turned out that the mother was not able to make full use of the weekend access even before the Covid.

140.In the post-Covid era, the mother’s situation has not improved, if it has not become worsen. She has been unable to travel to Hong Kong on a more frequent basis due to work and financial constraints. Mr Y also admitted that due to his work he has been unable to accompany the mother to come to Hong Kong as frequent as before.

141.The mother in evidence agreed that despite the uncertainties arising from Covid, the father still arranged G and L to fly to Japan for access so that the mother had access to L substantially more than that prescribed under the 2^nd Relocation Judgment. The father said he “encouraged” this to happen.

142.Moving forward, the father said he is happy to see access to continue. He conceded in cross-examination that it is in L’s best interest in going to Japan and immersed himself in Japanese culture. I take his words for it.

143.There appears to have one incident in which the father changed the access one day after the hearing of 12 June 2023 for the reason that L would like to go to Thailand for a Tottenham football event. As a result, the mother was forced to reschedule her flights and accommodation. In response, the father gave the excuse that it was a lifetime opportunity. I do not think the father has any defence to that. He should have told the court at the hearing of 12 June 2023 but failed to do so. I have to remind the father once again that he is not in a position to “grant” access to the mother.

144.Apart from this incident, access has largely been running smoothly. Since the close of evidence of this trial, L has been allowed by way of consent orders to see his mother in Japan thrice.

145.Mr Lam said L knew his father was upset when he made calls or texted his mother. This caused stress to L. He hoped the father should understand that the mother’s role is irreplaceable. He, however, did not consider outside monitoring on access is necessary in this case. I agree. I also agree with Mr Lam that the father should pay attention to L’s emotion.

146.It is clear that when L was with either one of his parents, he or she behaved in a highly cautious manner when it came to allowing L to have communications with the other side during the Hague Proceedings and these proceedings. When being cross-examined by the other side, both rejected the suggestion that restriction had been imposed on L on making contacts with the other side. I find the truth is, by and large, both did what are alleged. It is fair to say that probably it was because both were on the high alert and had a sense of insecurity, hence they behaved abnormally. The 2-year long revived litigations that began in Japan and spread to Hong Kong smashed what little trust the parties had rebuilt since the 2^nd Relocation Judgment. The father was indignant that he had to go through some complicated procedures during the Covid in order to enter Japan and had to stay there for 2 months for “retrieving” L. It is hopeful, with all these disputes come to rest upon the conclusion of the present application, parties start to respect and learn how to co-operate with each other on all aspects touching upon the upbringing of L in the years to come. L, who used to text his mother by “line”, should be able to do so and he should have his phone and I-Pad for communicating with his mother and grandparents. L is turning to be an adolescence. Parties should be aware that L loves both of them. Both should be mindful that their beloved son should not be caught between their conflicts; any unreasonable hindrance or restriction imposed on him by his father or mother may cause him emotional stress and anxiety.

147.Thus analysed, I see no reason why I should change the access arrangement for school holidays. I will keep the weekend access, too but I reduce it to once a month.

Orders:

148.For the above reasons, I make the following orders:

(1)  The mother’s application is refused.

(2)  The mother do have access to L in weekends (from Friday to Sunday) for not more than once per month during school days.

(3)  The mother do have half of the time of L’s long holidays for access except that she shall have 2/3 of the time of the winter break for access.

(4)  The dates and the details of access shall be agreed upon by the parties at least 2 weeks before the access.

Costs

149.As for costs, given that this is a child related matter, I am not convinced that the father should have the costs. I make an order nisi that there be no order as to costs of the summons dated 20 September 2022, including all costs reserved. There shall be a certificate for counsel.

Ms Fiona CHONG, instructed by Stevenson, Wong & Co, appeared for the petitioner

Mr SRM, the respondent, in person