H v. W

FCMC 8332 / 2017

[2024] HKFC 226

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8332 OF 2017

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BETWEEN

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J U D G M E N T
(Care and Control, Relocation & Decree Absolute)

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Introduction

1.This Judgment relates to the appropriate arrangements of a 9 year old girl A, the parties (“the Parents”) are respectively her Father and Mother.

2.The Parents married in February 2013, A was born in October 2015, the Father filed a divorce petition in June 2017 and a decree nisi was pronounced on 8 January 2019; a decree absolute has yet to be pronounced.

3.By the order of 15 December 2017 the Parents have joint custody of A, with interim care and control to the Mother and interim defined access to the Father.

4.It is an unfortunate feature of these proceedings that the Parents have been and remain locked in chronic litigation in relation to the appropriate arrangements for A, ancillary relief as between each other and the financial arrangements for A. I was told in the hearing that the Court of Appeal is currently considering the Father’s application for leave to appeal the Maintenance pending suit (“MPS”)/Interim maintenance Judgment dated 15 April 2024, leave having been refused by the Trial Judge on 5 July 2024.

5.Arising from the judgments to date there are substantial costs orders against both parties which have yet to be taxed. The Father has failed to pay maintenance of @HK$800,000; the Father informed the Court that he considered he was owed a similar amount by the Mother by way of the cost orders in his favour. I further understand from the Mother’s written opening that she has filed a Judgment Summons in respect of outstanding maintenance payments.

6.I do not propose refer to each and every application and judgment however there are specific judgments of particular relevance to the issues to be determined in this trial:

i) By the judgment of 10 November 2020 the Family Court gave leave for the Mother to relocate to Singapore with A.

ii) Such judgment, so far as relocation, was over turned by the Court of Appeal’s judgment of 24 May 2021.

iii) On 28 July 2023 the Family Court delivered a Fact Finding Ruling in respect of three incidents: “closet incident”, “hair removal incident” and “indecent assault”. It was the Mother’s case that these three incidents amounted to abuse of A whilst in the Father’s care. This was not accepted by the Family Court.

7.As the focus of this judgment relates to the future arrangements for A, I consider it appropriate to set out the concluding remarks of the Court of Appeal’s judgment of 24 May 2021:

"99. We allow the Father’s appeal and paragraph 1 of the Relocation Summons is dismissed. We set aside the Relocation Order save for the Intervening Order. Having made these orders, we wish to make it clear that Mother is not debarred from making any new application for relocation in future when she is able to provide realistic and practical proposals well researched and investigated, including but not limited to her business investment and/or finances and proposed housing, and when A has had a chance to meet Mr N and his children and has established a comfortable relationship with them. But it is wrong in principle for her to proceed with an immature and uncertain relocation option involving the child simply because she needs to procure her immigration status through the child’s student visa as a springboard."

Overview of A and the Parents’ circumstances

8.A aged 9 lives primarily with her Mother and attends an international school in Hong Kong. In accordance with the order of 28 July 2023 current term time access arrangements for the Father are :

i) Week 1 Thursday after school until Saturday 5pm

ii) Week 2 Saturday, 5pm until Monday morning before school.

Dinner access on Wednesday night

9.The Father aged 42 resides in his own property in Hong Kong. He is self-employed with a monthly income of approximately HK$100,000; he is sometimes required to travel overseas for short business trips. Inter alia he pays for A’s annual school fees of @HK$190,000, annual health insurance premiums for A of HK$25,000 and for the Mother of HK$60,000.

10.The Mother aged 44 resides in rented accommodation in Hong Kong. Her current monthly salary is approximately HK$70,000. Her employer has offered her employment in Singapore as a Human Resources Manager. The Mother has been in a committed relationship with Mr. N since the summer of 2019; they having known each other for approximately 17 Years. Mr. N resides in Singapore and is aged 54; he and the Mother were engaged on 12 November 2023 and plan to marry as soon as they are able to do so.

The Applications before the Court

11.By his summons of 1 December 2023 the Father seeks an order that:

“The Order of Her Honour Judge Melloy of 15 December 2017, granting the Respondent interim care and control of the child of the family, namely “A”, a girl, born on XX October 2015, and interim defined access to the Petitioner be varied to the extent that care and control be granted to the Petitioner and defined access be granted to the Respondent.”

12.In his written opening the Father supplemented the relief he sought as follows :

i) The Mother’s access be initially suspended for two months to enable him to rebuild his relationship with A without interference from the Mother

ii) In the first month A to have no contact with the Mother; in the second month remote contact every day

iii) Gradual access by the Mother to resume until a week on week off arrangement is reached but with the Father having sole care and control

iv) Holidays to be split

v) A to spend her birthday with both parents, alternating the first and second parts with each parent

vi) A to stay with each parent on their respective birthdays

13.By her summons of 2 November 2023 the Mother seeks an order that:

“1. Leave be granted for the Decree Nisi pronounced on 8^th January 2019 to be made Absolute;

2. Leave be granted to the Respondent to permanently remove the child of the family namely “A” , a girl born on XX October 2015 from the jurisdiction of Hong Kong to Singapore subject to the Respondent’s undertaking to mirror the access arrangements order in the Singapore Court;

3. Leave be granted to the Respondent to enrol A into a suitable international school in Singapore for the academic year 2024/2025;”

14.In her written opening the Mother supplemented the relief she sought as follows :

i) On her undertaking to obtain a mirror order in Singapore the costs of obtaining such order be paid equally by the Parents

ii) Leave to enrol A in the X International School, (“XIS”) or N International School or D College in Singapore

iii) General leave to both the Father and Mother to travel with A on holidays while she is with them without requiring prior approval from the other parent or the court, subject to an undertaking to notify the other of such travel plan prior to the travel

iv) Leave for the decree nisi of divorce pronounced on 8 January 2019 to be made absolute.

The Relevant law

15.In their written submissions the Parents helpfully referred to various authorities; I do not propose to refer to each authority, in addition I am mindful of other authorities which provide helpful guidance in determining cases of this nature, in particular how a court should take into account the wishes of a child.

Care and Control

16.The general principles are set out in s.3 of the Guardianship of Minors Ordinance, Cap.13 (“the GMO”), which states that:

(1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property-

(a) in any proceedings before any court (whether or not a court as defined in section 2) the court –

(i) shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to –

(A) the wishes of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

(B) any material information including any report of the Director of Social Welfare available to the court at the hearing;”

17.In YSYM and LHB [2020] HKCA 586 the Court of Appeal referred to the importance of a child’s wishes in the determination of the appropriate care arrangements :

“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 Contract and Domestic Violence - T–e 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.’

See also Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, [2006] 3 WLR 989, [2007] 1 FLR 961 per Baroness Hale at para [57]:

‘But there is now a growing understanding of the importance of listening to the children involved in children’s cases. It is the child, more than anyone else who will have to live with what the court decides.’”

Alienation

18.In his opening submission the Father referred to :

i) Re S (Parental Alienation: Cult: Transfer of Parental Care) [2020] EWCA Civ 568, Lord Justice Peter Jackson judgment:

“8 ….For working purposes, the CAFCASS definition of alienation is sufficient:

“When a child’s resistance/ hostility towards one parent is not justified and is the result of psychological manipulation by the other parent.”

To that may be added that the manipulation of the child by the other parent need not be malicious or even deliberate. It is the process that matters, not the motive.

10. There exists a spectrum of severity in relation to alienation, and the remedy depends upon the assessment of all aspects of the child’s welfare.”

19.In addition to the above paragraphs referred to by the Father the immediate preceding paragraph in the judgment is relevant :

“7. At the outset, it must be acknowledged that, whether a family is united or divided, it is not uncommon for there to be difficulties in a parent-child relationship that cannot fairly be laid at the door of the other parent. Children have their own feelings and needs and where their parents are polarised they are bound to feel the effects. Situations of this kind, where the concerned parent is being no more than properly supportive, must obviously be distinguished from those where an emotionally abusive process is taking place. For that reason, the value of early fact-finding has repeatedly been emphasised.”

Relocation

20.The Mother referred to the Court of Appeal’s judgment in BA and BL (Child Relocation) [2019] 4 HKLRD 23

“4.14 In Hong Kong, the paramount consideration is whether the relocation is in the best interests of the child. Hence 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. There may be myriad reasons why such a parent applies for the relocation of the child. Ultimately it is one of the factors to be considered in the overall assessment whether the relocation is in the best interests of the child and the weight to be attached to this factor depends on the facts of the case. The value of Payne is that it "identifies a number of factors which will or may be relevant in a relocation case, explains their importance to the welfare of the child, and suggests helpful disciplines to ensure that the proper matters are considered in reaching a decision but it does not dictate the outcome of a case", per Black LJ at [144] in K v K. In my view Payne is not to be jettisoned. The relevant factors provide a structured framework in which the appraisal is to be made holistically.”

21.The Court of Appeal in its judgment in this case [2021] HKCA 733 also emphasised the Payne principles :

“32. The Payne guidance can be summarised as (1) Is the applicant’s proposal genuine and realistic in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life? (2) Is the respondent’s opposition motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive? (3) What would be the impact on the applicant, either as the single parent or as a new spouse of a refusal of his/her realistic proposal? (4) The outcome of the appraisals in (2) and (3) must be considered in the overriding review of the child’s welfare [or in Hong Kong the child’s best interests] as the paramount consideration.”

Decree Absolute

22.The relevant legislative provisions are Sections 18(1)(b) and (6) of the Matrimonial Proceedings and Property Ordinance which states as follows :

(1) The court shall not make absolute a decree of divorce or of nullity of marriage, or make a decree of judicial separation, unless the court, by order, has declared that it is satisfied –

…..

(b) that the only children who are or may be children of the family to whom this section applies are the children named in the order and that –

(i) arrangements for the welfare of every child so named have been made and are satisfactory or are the best that can be devised in the circumstances; or

(ii) it is impracticable for the party or parties appearing before the court to make any such arrangements”

….

(6) In this section welfare (福利), in relation to a child, includes the custody and education of the child and financial provision for him.”

The Reports

23.The court was provided with a 313 page bundle containing 26 reports, many of which were not referred to at the trial.

24.There are seven Social Welfare Reports spanning the period 23rd November 2017 to the 2nd October 2024 recommending care and control to the Mother.

25.Included in the bundle were the reports of Dr. Jadis Blurton dated 27 November 2017 and 26 March 2018 and Ms Lora Lee dated 15 November 2019 and 3 July 2020.

26.In her Relocation Judgment dated 10 November 2020 Her Honour Judge Melloy said:

“37. Dr Jadis Blurton and her team were the courts original Single Joint Expert (SJE). However, they were replaced after the father contacted them privately for advice and potentially placed them in a position of conflict. In order to present any difficulties going forward and at the trial, they were then replaced by Ms Lora Lee, who, over time, prepared a further two reports. Consequently, Dr Blurton was not called to give evidence at the trial and she was not cross examined on her reports, which are in any event now over 3 years old. However, I refer to them here, because the father has continued to rely on some of the comments made in those reports.”

and

“43. Thus I am left in a situation where although the reports have all provided valuable background information they have not really assisted me in coming to a conclusion. For the reasons set out above I do not intend to rely on either Ms Tong’s or Ms Lee’s reports in their entirety and I do not intend to put into effect the recommendations that they have made.”(Ms Tong was the Social Welfare Officer at the trial)

27.In relation to Ms Lora Lee reports, in her Fact Finding ruling dated 28 July 2023 Deputy District Judge S. Allison stated :

“23. I note that there has been a finding made by the Hong Kong Psychological Society (“HKPS”) of “gross negligence and biased reporting on the Child Custody Evaluation” in relation to Ms Lee. The finding was reached following an investigation by the discipline board appointed by the council of the HKPS. In light of this finding, I have not replied on or taken in account the Lee Reports in reaching my decision.”

28.The Father considers that the reports of Dr. Blurton and Ms. Lee are relevant and supportive of his firm belief that the Mother has “brain washed” A and is guilty of “parental alienation”.

29.In this trial the court was assisted by the oral evidence of Ms Chan the Social Welfare Officer and Ms Ho a Clinical Psychologist both from the Social Welfare Department.

30.Ms Chan filed two reports:

i) The first on the 16 November 2023 recommended:

“29. In light of the above, I would like to recommend that there shall be alternative weekly access pattern as follows:

(a) Week 1: The “Father” shall have direct access to the family child from Thursday after school until Saturday, 5:00p.m.;

(b) Week 2: The “Father” shall have direct access to the family child from on Saturday, 5:00p.m. until Monday morning before school; The Petitioner, shall have remote access through phone calls, Face Time, WhatsApp on Wednesdays to the family child and;

(c) The “Mother”, shall have brief remote access to family child during the Petitioner’s access time.

(d) Both the “Mother and Father” should have equal and shared access to all other holidays;

(e) Both the “Mother and Father” shall facilitate the access arrangement.”

ii) Her second Report dated 2 October 2024 recommended:

“39. Based on the above analysis, subject to Your Worhsip’s consideration, the ISWO would like to recommend that:

i. The “Father” and the “Mother”, be granted joint custody of the family child “A”;

ii. The “Mother” be granted the Care and Control of the family child, “A”;

iii. Family child, “A” be relocated and studied in Singapore;

iv. The “Father”, should be granted the following defined access after the relocation:

- The “Father” shall have daily remote access through phone calls, text message, video calls or any other means;

- The “Father” shall have weekend access not exceeding twice per month in Singapore;

- For Chinese New Year, Easter and Christmas and long school holidays to be shared on equal basis;

v. The details of the above access, including time and logistics shall be flexible and mutually-agreed upon by both parties and shall not interrupt the family child’s school schedule;

vi. Before the transition to Singapore, a weekly access schedule from Friday to Sunday, along with daily remote access, is suggested while Wednesday night dinner access shall be cancelled.”

31.Ms Ho filed a Psychological Report on 2 April 2024 which stated that

“15. Based on the information gathered from interviews, clinical observation, and results of psychometric assessment, no significant behavioural or emotional disturbance in “A” as compared with children of her age was identified.”

32.By the order of 28 June 2022 the Official Solicitor (“the OS”) was appointed to act on behalf of A and by the order of the 29 September 2022 “to keep track of the access arrangements”. The OS filed 7 Reports between 28 November 2022 and 2 October 2024; Ms Chui, as the OS, helpfully attended the trial.

The Oral Evidence (in order of the sequence of witnesses)

Ms. Chan

33.The Social Worker Officer who had prepared the reports dated the 16 November 2023 and 2 October 2024 was cross examined by both Parents. Prior to such cross examination she informed the court that she had first been involved in this case in June 2023.

34.The Mother’s cross examination was relatively succinct no doubt by reason of the fact that Ms. Chan supported her relocation plan.

35.The focus of the Father’s cross examination related to difficulties with access, including with paternal grandparents, alienation, the coaching of A, difficulties with play therapy, counselling and disclosure of medical records.

36.In the context of access and relocation I consider the following exchange between the Father and Ms. Chan of significant relevance:

“Q. Why do you believe the mother would suddenly comply with orders if she were relocated to Singapore when she has not complied with any of the orders over the last past three years? Well, she has not complied with orders over the last three

Court: Past, how many years?

Petitioner : Three years.

A. I will give my answer in two parts. Firstly, as to why the mother suddenly changed her attitude, I think throughout this entire process, especially…

Court : And please, Madam Interpreter, go slowly. This is an important answer. Throughout this process?

A. Especially these two years, which I followed up on this case, I observed that the mum was very progressive and tried to compromise with you and tried to work with you, and slowly developed an arrangement that you both were able to compromise on. The second part: the mother did not cease all access….”

The Mother

37.The Mother gave her evidence succinctly reflecting her own perceptions and concerns.

Mr. N

38.Mr. N was measured in his delivery. It is a matter of note that he and Father exchanged their respective questions and answers in a courteous and civilised manner.

39.I found the following evidence arising from the Father’s cross examination of Mr. N illustrative generally and in particularly of how Mr. N’s considers his role in the event the Mother and A relocate to Singapore and live with him :

Question : Did you try to guide her or give her advice on how to facilitate access between me and “A”?

Answer: I have always been of the opinion that “A” should get fair time with you and with her. So, yes I have sometimes given some advice and I’m happy to do my part to ensure that it stays strong as a bond between you and her.”

and

Question: “I put it to you that if relocation order was granted to Singapore and “A” still continues the belief that I have done something this severe to her, she may see her being taken away from me as confirmation that this did happen, which will have lasting effects on her growing up. What are your views on this?”

Answer: “I disagree because the fact-finding happened a while back and since then she has been having access with you and she seems to be enjoying it as well in my opinion, so I wouldn’t connect the two.”

and

Question : ..“I assume you and the respondent are close, as you said. I would like to know what guidance you may have offered her during this period to help promote the father-child bond.”

Answer: “I’m a father to two daughters who have grown up to be very strong, independent and successful young girls. I do feel that children remember everything from their lives and it makes them into good individuals if they get the support that they need from their parents. I have always shared with the respondent that “A” is primarily both of your responsibility and your duty to ensure that you give her the best of whatever is possible. So I have advised many times that rather than make anything into a conflict, it would be probably better if you two speak with each other first and then decide how to let “A” be made aware of that topic.”

and

Question : How can you convince me and the court that you would be able to amicably work as a blended family while respecting my role and time with Aryana as her biological father?

……..

Answer : “I firstly am very clear that “A” is your child and “P”’s child, and you are her biological parents, and therefore, your love for her and her love for you is nothing that I would ever want to step in the middle of. I love “P” and have grown to really care for “A” over the last few years. And my job, if I could say, is to ensure that it’s a harmonious relationship for all four of us. And I’m happy to do my part in whichever capacity that you feel I could be of value, to ensure that everybody feels comfortable with the relationship. I had also requested the respondent earlier once, some – last year or whenever, to see if I could meet up with you because I feel, rather than “A” thinking that it is me versus you, I just want to be a helpful ally, rather than anything else, to both of you.”

The Father

40.The Father gave his evidence succinctly reflecting his own perceptions and concerns.

Ms. Ho

41.Ms. Ho spoke to her report. In terms of the consideration A’s maturity and therefore the weight to be placed of her views I found the following exchange between Ms Chui (the OS) and Ms. Ho significantly relevant :

Question: …. “How would you describe “A”’s level of maturity during your communication and assessment with her?”

Answer : “I think she is at least not less mature than children her age or even more mature than children her age. And I also think that she is a smart and sensitive child.”

Analysis

The Father’s application for care and control

42.The Father is seeking a change in A’s care and control from the Mother to him.

43.From his perspective he inter alia highlighted in his opening the following :

i) “2. Previous Social Investigation Reports indicated that the father shared a “close and harmonious” relationship with the child, and it was recommended that the parents transition to a 50:50 shared care arrangement when the child reached the age of 5 or 6.”

ii) “6. Things changed in January 2022, the Mother unilaterally cut off the Father’s access to the Child and made a series of serious allegations to justify her actions…”

iii) By the order of 6 July 2022 the Father’s access to A was supervised.

iv) Unsupervised access was not restored until the Fact Finding Judgment of 28 July 2023.

v) “13. The Child is not now able to exhibit the “warm and loving” relationship she had with her Father prior to the Mother’s denial of access.”….“This clearly indicates something has gone very wrong that warrants immediate actions to rectify the situation and in particular rebuilding the father-daughter relationship having considered the Child’s best interests.”

vi) “15. A recurring theme throughout these proceedings, including the initiation of various allegations, is the Mother’s apparent intention to exclude the Father from the child's life. The nature of these allegations appears to demonstrate a lack of consideration for the daughter's well-being, focusing instead on the Mother's objective to prevail in court and remove the daughter from the Father's life.”

44.In his closing submission the Father stated :

“12. It is clear that the Mother’s tactics of alienation against the Father is escalating at every turn and it is well documented the result of such escalation since the original trial had taken place in 2020. The Father has lost valuable time with the daughter during her precious years’ time that cannot be taken back.”

45.I recognise there have been difficulties in access and that in particular the circumstances that were canvassed in the Fact Finding Judgment were singularly unhelpful to effective access.

46.In evaluating the Father’s criticism of the Mother, the reports and oral evidence of the Ms Ho and Ms. Chan have been helpful in assessing the current interaction and dynamic within the parent/child relationship and whether or not the Mother’s intention is “to exclude the Father from the child's life.”

47.I note Ms Ho stated in her report (12 April 2024) as follows:

i) Father-daughter-interaction“§8 Natural and spontaneous pattern was observed in their interaction”…”No sign of fear or rejection was noted in their interaction”

ii) “§16 The reasons she disliked having access with “father” were his insufficient attention, play and activities arranged.”

48.I note Ms. Chan stated as follows :

i) In her first report dated 16 November 2023

“22. In all Interviews, “A” clearly expressed her preference to live continuously with her mother. She has expressed a desire to maintain contact with her father, but preferred to spend time with him only at weekends.”

and

“26. During the present investigation, “A” demonstrated a positive attitude and willingness to maintain a connection with her father”

ii) In her second report dated 2 October 2024

“26. ..Having built rapport with the ISWO,”A” appeared open to sharing her thoughts and was expressive throughout the process. During all interviews, she demonstrated good communication skills, providing coherent responses and a cooperative attitude. Despite her young age, “A” clearly expressed her views on custody matters during interviews with the ISWO. She regarded her mother as the most important person in her life. Whenever she felt sad or unwell, she wished to stay with her mother. “A” expressed a strong desire to live with her mother continuously and relocate to Singapore, but she felt afraid to share her views with her father due to concerns about his potential anger. While “A” loved both parents, she often felt caught in the middle of their conflicts and found the frequent transitions between their households confusing. “A” noted that her mother, Madam H , consistently supported her relationship wither father. For example, her mother gave her a doll to enhance her sense of security during visits to her father’s house. However, “A” felt disappointed that her father did not allow her to bring gifts back to her mother’s home.”

49.It is clear from the Reports lodged by the OS and the Social Welfare Officer that access has stabilised and improved since the order of 28 July 2023. In addition to which Ms. Chan gave evidence as to the Mother’s “progressive” approach to A’s arrangements.

50.By reference to the GMO and case law the court has a duty to take into account, subject to age and understanding, the wishes and views of the child.

51.A is 9 and is of an age and understanding where her wishes and views are relevant; from the reports I apprehend that she wishes to primarily live with her Mother and to have contact with her Father.

52.In the circumstances having considered the evidence as a whole I conclude that it is not in A’s best interests for her care and control to be changed, I therefore dismiss the Father’s application for sole care and control dated the 1 December 2023; A’s sole care and control shall remain with the Mother.

Relocation

53.As referred to above this is the Mother’s 2^nd application (2 November 2023) to relocate with A to Singapore and is formulated on the basis that she retains A’s care and control.

54.As I have concluded that it is in A’s best interests to remain in the Mother’s care and control I propose to primarily evaluate the Mother’s relocation application by reference to the Payne criteria.

(1) Is the Mother’s proposal genuine and realistic in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life?

55.The Mother’s plan encapsulates the following:

i) Employment in Singapore; her Employment Pass has been approved by the Singaporean Ministry of Manpower enabling her to reside and work in Singapore.

ii) A’s Dependent Pass has also been approved by the Singaporean Ministry of Manpower enabling her to reside and study in Singapore.

iii) For A to attend Grade 3 at XIS an international school in Singapore from 20 January 2025 for the second semester. For the 2024/2025 academic year the holidays are:

Mid-term holidays	5 October to 20 October 2024
Christmas holidays	14 December to 5 January 2025
Easter holidays	29 March to 6 April 2025
Summer holidays	@8 ½ weeks starting in June 2025

The Mother has already paid the application fee of S$1,000 (@HK$5,800) (S$1 = HK$5.8) and a confirmation fee of S$5,500 is payable for acceptance of placement to be settled within 7 days of acceptance. XIS requires the parents to sign a “XIS Joint Agreement” prior to a child’s enrolment. The annual tuition fees for Grade 3 for the academic year 2024/2025 are S$38,800 or S$19,400 per semester = annually @HK$225,040 or semester HK$112,520.

iv) To reside with A with Mr. N in his accommodation; A is familiar with such accommodation from her previous visits to Singapore

v) To marry Mr. N who resides in Singapore

vi) Care arrangements: the Mother will be working from home and intends to apply for her long standing domestic helper in Hong Kong to move to Singapore. The Mother has researched an appropriate pediatrician and dentist for A.

vii) A and the Father’s relationship: the Mother proposes the following access :

- Remote access: weekly video calls in the evening at 6PM during term time to facilitate regular contact with the Father and is open to any further suggestions.

- Term time access: the Father have reasonable access in Singapore, with monthly weekend visits, and would be open to any further suggestions.

- School holidays: long school holidays to continue to be split equally and alternated every year for each parent

viii) Finances: In her opening the Mother refers to the Father’s previous undertakings recorded in the order of the 24 October 2018 to be responsible for A’s education costs and ECA’s (up to HK$2,000 per month) and her medical and dental insurance.

“138. Upon relocation, the Mother proposes that the Father continues covering these expenses and a small portion of A’s general living expenses. With the relocation, the Father would no longer need to pay for the Mother’s interim maintenance and medical and dental insurance .The Mother suggests that the parties either agree on this arrangement or engage in mediation to reach a resolution. If the Father chooses not to participate, the Mother and “Mr. N” have given an undertaking covering all of “A’”s financial needs”

56.Having considered the above I conclude that the Mother’s proposal is both genuine and realistic and is not motivated by an intention to exclude the Father from A’s life.

(2) Is the Father’s opposition motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive?

57.I perceive the Father’s primary opposition to relocation is not Singapore or the actual arrangements relating to “A’s” care, accommodation and schooling but rather the physical separation which relocation entails and in particular his fear that once in Singapore the Mother will impede his relationship and access with A.

58.The Father has also raised concerns as to the Mother’s employment in Singapore and the strength of the Mother’s relationship with Mr. N.

59.It appears from the Father’s submissions and evidence that he remains “trapped” in his own opinions and has not sufficiently recognised and or acknowledged the comments of Ms. Ho , Ms. Chan and most importantly A. The Father remains focused on what he perceives to be his own best interests in his relationship with A rather than the wider and broader vision of what is in A’s best interests holistically. Not with standing such impression I do, however, consider that the Father’s opposition is motivated by his genuine concern for the future of the A’s welfare rather than some ulterior motive.

(3) What would be the impact on the applicant (Mother), either as the single parent or as a new spouse of a refusal of his/her realistic proposal?

60.Having had to the opportunity to review the evolution of the litigation from the trial bundles, the written and oral evidence of Ms. Ho and Ms. Chan and the Parents’ evidence I consider that it would be detrimental to the Mother if her application for relocation is refused particular with regard to her emotional and financial stability. I say this also having in mind the fact that the financial arrangements in Hong Kong have been and are fraught with difficulties as evidenced by the Father’s failure to comply with MPS/Interim maintenance order.

(4) The outcome of the appraisals in (2) and (3) must be considered in the overriding review of the child’s welfare [or in Hong Kong the child’s best interests] as the paramount consideration.”

61.I have in mind the Court of Appeal’s judgment of 24 May 2021 in which it considered the Father’s concerns as to the Mother’s alienation and or alienating conduct :

“93. As regards the remaining Ground 2(II), Father’s complaint was the Judge failed to consider adequately or at all the impact that the Mother’s possible alienating conduct will have on A once A is a further step removed from Father and her other attachment figures”

“98. It was thus the Judge’s clear finding that there was no parental alienation or alienating conduct and we do not see any basis for interfering with her finding in this regard. There is no merit in Ground 2(II)”

62.Whilst reflecting on the Father’s current concerns and fear as to future access it is of significance that A is 9, an independent young person whose wishes are relevant for the court’s consideration.

63.I have had the opportunity to consider the recent reports and hear the from Miss Ho and Miss Chan from whose evidence it is clear that A loves her Father and wishes to have an interactive relationship with him. In addition to which the Ms. Chan deposed to the Mother’s approach to access and supported the Mother’s relocation plan.

64.A’s emotions and wishes are inconsistent with alienation and brainwashing. I therefore do not accept the Mother has alienated and or brainwashed A or that the Mother’s objective is to “remove the daughter from the Father's life.”

65.I also bear in mind that the Mother has proffered an undertaking to obtain a Mirror Order in Singapore; for the avoidance of doubt a Singaporean Mirror Order is to be obtained prior to A’s departure from Hong Kong. I shall in addition require the Mother to file with this court her undertaking to return A to the jurisdiction of Hong Kong if called upon to do so.

66.The Father has raised concerns as to what would happen if the Mother’s employment came to an end in Singapore. Whereas with a move to a new country and employment can be problematic; I do not consider this possibility as an overriding factor in considering the Mother’s plan to relocate with A.

67.The Father also raised concerns as to the strength of the Mother’s relationship with Mr. N. The Father makes the point that the Mother’s intended marriage will be her third marriage, that they have not cohabited on a full time basis and that this is her second relationship with Mr. N. The Husband in his closing drew attention to the Mother’s oral evidence that in the event she is not allowed to relocate their relationship would end whereas Mr. N said it would continue. I do not consider this reflects “their readiness to be together” as suggested by the Father but rather understandable differences/ concerns by the Mother and Mr. N as to the future.

68.A has met Mr. N on his visits to Hong Kong, twice in Singapore and on other occasions on overseas holidays. Mr. N has three children by his earlier marriage aged 28, 26 and 18; he is on good terms with their mother. The two elder children reside outside Singapore. His 18 year older daughter attends university in Singapore and on occasions returns to Mr. N’s home at the weekend.

69.I note that Ms Chan in her report dated 2 October 2024 stated as follows :

“15 …Overall, the observation revealed a close, supportive and joyful relationship among “the Mother, Mr. N” and A”.

70.With an overriding review of the A’s best interests as the paramount consideration I conclude that the Mother’s application to permanently relocate from Hong Kong to Singapore with A should be granted with the following arrangements as to access and finance.

Access arrangements

71.I propose to follow the recommendations in Ms. Chan’s report dated 2 October 2024 :

i) The Father shall have daily remote access through phone calls, text messages, video calls or any other means;

ii) The Father shall have weekend access not exceeding twice per month in Singapore;

iii) Chinese New Year, Easter and Christmas and long school holidays to be shared on equal basis

Financial arrangements

72.Understandably there is no financial application before the court in this trial although in their submissions the Parents have commented on financial arrangements and have made and canvassed proposals.

73.The current situation I understand to be as follows:

i) The Parents attended an unsuccessful FDR on 3 and 4 January 2022, a PTR was then listed for 25 March 2022; this was vacated pending determination of child matters.

ii) By the order of 15 April 2024, the Father has been ordered to pay, in addition to his undertakings to pay for A’s school fees, ECA’s up to a maximum of HK$2,000 per month and her medical/dental insurance and medical/dental insurance for the Mother :

- Monthly MPS of HK$10,000 per month for the Mother

- Monthly interim maintenance of HK$39,000 for A.

iii) The Father’s application for leave to appeal such order was refused by the MPS trial Judge on 5 July 2024, the Father has sought leave to appeal from the Court of Appeal.

iv) The Mother has lodged an application for a Judgment Summons.

v) The Father states he is paying A’s annual school fees of @HK$190,000, A’s annual health insurance of HK$25,000 and the Mother’s annual health insurance of HK$60,000.

74.As there is no application and no updated evidence before me it is not appropriate to substantively re-visit the current MPS order; in any event there are outstanding applications for leave to appeal and judgment summons proceedings in respect of such order.

75.However in the light of the Mother’s proposal set out above I do consider it is reasonable and practical to release the Father from his undertaking to pay the Mother’s health insurance and to vary the MPS for the Mother to zero, such arrangement will take effect from 1 January 2025.

76.I note that although schooling in Singapore is slightly more expensive than in Hong Kong and that the Father will have the additional expense of flights and accommodation in Singapore during access, he will no longer be responsible for monthly MPS to the Mother of HK$10,000 (HK$120,000 per annum) and the Mother’s health insurance of HK$60,000 per annum.

77.I do so in the knowledge that court may adjust such financial arrangement in the event that after future consideration and with the relevant updated financial evidence before it, a backdated adjustment is deemed just and appropriate whether upwards or downwards.

78.For the avoidance of doubt until varied and or successfully appealed the Father’s remaining obligations in the order of 15 April 2024 remain :

i) The Father’s undertaking to continue to pay A’s school fees, ECA’s (up to HK$2,000 per month) and A’s medical and dental insurance

ii) Interim child maintenance of HK$39,000 per month.

Section 18, decree absolute

79.By reference to section 18(6) of the MPPO welfare “in relation to a child includes the custody and education of the child and financial provision for him”.

80.The custody of A is recorded in the order of 15 December 2017 whereby the Parents have the joint custody of A.

81.Following upon the previous orders and this judgment there are now orders as to A’s custody and care and control, in addition to which arrangements have been ordered as to her relocation, education and access.

82.I have carefully considered whether, by reason of the problematical financial provision, arising from the Father’s failure to comply with court’s order as to maintenance , the court can be satisfied as to the “arrangements for the welfare” of A.

83.In the context of the case generally and notwithstanding the ongoing litigation in relation to maintenance and the fact that ancillary relief between the Parents has yet to be determined I consider the arrangements for A “are the best that can be devised in the circumstances”.

84.In addition I consider and that it is in A’s best interests for her Parents’ unhappy marriage be formally brought to end thereby by allowing the relationship between her Mother and Mr. N to be appropriately formalised by marriage.

85.I therefore hereby pronounce a Section 18 declaration. It will then be for the Mother to apply for the decree nisi pronounced on the 8 January 2019 to be made absolute.

Timing for the relocation and transitional access and arrangements

86.A’s Christmas break for her current school in Hong Kong starts on 19 December 2024.

87.The Mother is expected to start her employment in Singapore on 2 January 2025.

88.From the XIS material produced by the Mother Classes resume with orientation for new students on Monday 6 January 2025.

89.The priority is “the bests interests” of A. Where I have concluded that there is to be a relocation I consider the practical focus is ensuring that A’s move from Hong Kong and her integration in Singapore is as smooth as possible and ,in particular ,her assimilation into her new school .

90.I therefore consider that on the basis that the Mother has obtained the Mirror order the Mother and A’s date for relocation shall be Wednesday 1 January 2025.

91.Between Thursday 19 December when A breaks up and the 1 January 2025 the Father shall have access as follows:

i) Friday 20 December from 5pm until 5pm on Thursday 26 December

ii) Saturday 28 December until 5pm on Monday 30 December

92.The transitional access arrangements and the access arrangements in Singapore will take effect from 19 December 2024 and shall supersede all previous orders as to access.

Costs

93.The approach to costs has been succinctly summarised by Madam Justice Chu in LCH and JMC [2019] HKCFI 251:

“10. It has been long recognised that in children matters, the general practice is that there be no order as to costs. In TPL and WYY, CACV 47/2014 and CACV 61/2014, unreported, 15.12.14, the Court of Appeal has set out the relevant principles that should be taken into account when considering if a cost order is appropriate in applications to do with children. As pointed out by the Court of Appeal, the approach that in applications to do with children, the usual order should be no order as to costs stems from the aspiration that in these applications, the court is seeking to find an arrangement which is best for the children, and that the rationale is that when a court considers custody and care and control of the children, the proceedings are inquisitorial rather than adversarial.”

94.Having considered the circumstances of this case and particularly the nature of this trial which relates to the future arrangements of a child; I see no reason to depart from the usual order that there be no order as to costs including any associated reserved costs. Such order will be nisi and shall become absolute 14 days after the date of this judgment unless either Parent notifies the court that they wish to be heard on costs.

95.The Official Solicitor has asked to be released from the proceedings; I grant such application to take effect 14 days after A’s relocation and physical departure from Hong Kong.

Orders flowing from this Judgment (“the Relocation Order”)

96.The Father’s application dated the 1 December 2023 for care and control of A be dismissed.

97.The Mother shall have the care and control of A.

98.The Father’s transitional access between 19 December to 31 December 2024:

i) Friday 20 December from 5pm until 5pm on Thursday 26 December

ii) Saturday 28 December until 5pm on Monday 30 December.

99.Access post relocation

i) The Father shall have daily remote access through telephone calls, text messages, video calls or any other means;

ii) The Father shall have weekend access not exceeding twice per month in Singapore;

iii) Chinese New Year, Easter and Christmas and long school holidays to be shared on an equal basis with and without the jurisdiction of Singapore.

100.Upon filing her undertaking to this court to return A to the jurisdiction of Hong Kong if called upon to do so and upon the Mother obtaining a mirror order from the appropriate court in Singapore with regard to the terms of this order (“the Mirror Order”), the Mother do have leave to permanently remove “A” from the jurisdiction of Hong Kong to Singapore from 1 January 2025.

101.The Mother do have leave to enroll A in the X International School in Singapore.

102.Current travel restrictions relating to A shall be uplifted upon the Mother obtaining the Mirror Order; the Mother do serve a copy of the Relocation Order and the Mirror Order upon the Immigration Department of the HKSAR.

103.General leave to both the Mother and Father to travel with A on holidays while she is with them without requiring prior approval from the other parent or the court, subject to the undertaking of both parents that they shall notify the other in writing 14 days prior to such travel.

104.There be a Section 18 declaration.

105.The OS be released 14 days after A’s physical relocation and arrival in Singapore.

106.The financial arrangements shall be as referred to in paragraphs 75 and 78 above.

107.There be liberty to apply on an urgent basis as to the implementation of this order.

108.There shall be no order as to costs nisi, including any associated reserved costs; such order to be absolute 14 days from the date of this judgment.

Last but not least

109.The Parents have each assisted the Court with their written material, their focused questions of the SWO and CP, and their courteous manner in court including the interaction with each other at the Trial.

110.Bearing in mind the nature and history of the litigation this must have required considerably restraint and control by both Parents and is a significant illustration of the benefits of their measured and respectful interaction.

111.In the context where it is clear that both Parents and A wish this chronic litigation to end they may wish to explore resolving the outstanding matter of ancillary relief and other practical matters through mediation, particular having in mind the statement of Ms. Ho the clinical psychologist:

“20. Last but not the least, “A” (and both of her parents) had explicitly expressed that she/they had been very tired of the prolonged legal procedures, investigations with various professionals, as well as changes and complexity of access arrangement, although these were caused by the persistent parental disputes to certain extent.”

The Petitioner (Father) and Respondent (Mother) both appeared in person