Sg v. Gdv

FCMC 10217/2020

[2026] HKFC 73

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 10217 OF 2020

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J U D G M E N T

( Relocation )

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The Application

1.The Respondent father’s (“F”) has made three applications for temporary and permanent relocation of the children of the family by his various Summons dated 7 May 2024 (for both Children), 19 August 2024 and 2 October 2024 (for his eldest son only).

2.Petitioner mother (“M”) opposes his application.  

Brief background

3.F is a US national and the CEO and shareholder of a real estate technology company of which he was the founder.  M comes from Kyrgyzstan, has been a housewife most of her married life, and has also helped F in his company.  Parties met in 1999, got married in the US in May 2004 and came to Hong Kong in around 2006.  The two children, both born and raised in HK, are respectively L, born on XX August 2010 and P born on XX October 2012 (together the “Children”), aged 14 and 12 at time of trial.  M petitioned for divorce on 5 November 2020.  This was a long marriage of more than 16 years.

4.At the time of this hearing, the parties were both 52 years of age.

5.Further reference can be made to previous decisions from HHJ Melloy in August 2021 on MPS and interim maintenance, my decision on relocation in January 2023, and my decision on variation of maintenance dated 4 August 2025, which provide background on the parties and my finding of facts on various issues.

6.On the first day of the trial, parties agreed for L to be permanently removed to the US, a consent summons was signed to that effect which was made an Order of Court on 21 May 2025.  This decision will therefore be focused on P.

Key Litigation events

7.It is worth repeating here that since the divorce proceedings commenced in November 2020, there had been no less than 40 substantive Summons taken out by H.  For most part, as a litigant in person, he made repeated applications sometimes of the same nature, combined multiple “applications” of children and financial nature into one Summon, attached the same documents to applications more than once, unilaterally submitted Form Es over and over again without leave of Court stressing his lack of finance; all this despite he had been told more than once that the usual procedural rules apply to him, yet those remarks had been ignored. 

8.Following a domestic violence application by M, HHJ Melloy in August 2021 ordered that the parties be granted interim split care and control.  F has care and control of L, and M has care and control of P, Orders for access were made, and parties have been flexible with regard to access.

9.Also on 13 August 2021, F was ordered to pay $44,000 maintenance per month to M, for which he had repeatedly failed to pay.

10.In January 2023, I delivered my decision on F’s application to relocate both children to the US (the “First Relocation Judgment”).  I dismissed F’s application; as well as his subsequent leave to appeal application in May 2023.

11.I handed down an extempore decision on Schooling in June 2023 regarding F’s application to take the Children to the US for education, which was declined; and I gave leave for M to enrol the Children to local schools per her Summons.

12.There had been applications by H for temporary removal of the Children to the US.  One was on 7 December 2023 heard by me, one on 31 January 2024 heard by DDJ S Allison and on another occasion in 30 April 2024 heard by HHJ CK Chan.  All of these were declined.

13.There was a trial on the Children issues which was heard on in October 2023, which lasted for 6 days, but before the decision could be made in that case, F initiated this May 2024 second relocation application.  I decided that the issues can be consolidated to be considered under this decision.

14.F had made various applications to vary the maintenance payment.  I delivered a judgment on F’s application for variation of maintenance on 4 August 2025 (the “VOM Decision”) wherein in brief, I varied upwards M and P’s maintenance and found that F has the ability to pay.

15.When this trial opens, parties have conceded for L to go to the US.  For the purpose of this decision, I will not be making reference to evidence or proposition relating to L unless for background or necessity. 

16.After this trial, M took out an Exparte Summons on 27 June 2025 for a Prohibition Order against the F to enforce his outstanding maintenance of around $1.128 million.  Master Lung granted the Prohibition Order on 8 July 2025 (limited to $448,250) while W sought further leave to enforce more than 12 months of outstanding maintenance.  Master Chak extended this Order on 31 July 2025.  It was eventually by consent that parties agreed for F to pay $472,250 and some costs orders, and the Prohibition Order was discharged on 22 August 2025.

The Evidence

17.There are 16 bundles in total.  Where the parties are concerned, 31 affidavits / affirmations, have been put into evidence dating back to November 2020; of which 11 belongs to M and the rest to F.  There are also updated Form E from March 2025 from both parties, and the F’s Form J from May 2023.

18.This trial lasted for 7 days with oral evidence from the social welfare officer (“SWO”) and the clinical psychologist (“CP”), M was represented by counsel on legal aid, and F acted in person.  

F’s case

19.This is the second time F has applied for relocation of the  Children to the US.  As mentioned above, it was turned down on the last occasion in January 2023.  F sought leave to appeal which was not granted, he did not take it forward.  

20.F had since the trial ended, moved back to the US with L, this was in the summer of 2025.

21.F accused M of inability to care for P, and that P’s emotional and physical wellbeing is reliant on the care and support provided by F, L and the former domestic helper.

22.F further claims that P will be left behind and isolated in HK, separate from his father and brother and his Greek Orthodox faith.  He says both P and himself would suffer severe emotional distress if separated.

23.F also says that his US proposal is a superior plan to what M can offer in HK.

F’s Open Proposal

24.F came to this trial with the following proposals.  I have left out references relating to L as it is no longer applicable.  It is rather lengthy and is summarized as follows:

25.F proffers two alternate proposals:

a.  A trial removal for P to go to the US so as to “test P’s adjustment”

i.  P will attend private international school

ii.  P will have stable housing of 2,700 square feet with swimming pool. 

iii.  F also offers M a “comprehensive long-term access and visitation package”.  (see paragraph 26 below)

iv.  F says there is to be “Judicial Safeguards” in the US, which will take the form of quarterly reports submitted to Hong Kong Social Services and HK Family Court.  He also claimed that HK Court will retain authority to order P’s return to HK, and also quoted “Hague Convention Compliance” but did not elaborate on the latter term.

b.  Or in the alternative, if P were to stay in HK, he asks for the following safeguards i to iv:

i.  Court ordered enrolment at a named international school (“A”) or similar private international school with USA curriculum. (F’s family members will provide school fees for P directly to A or equivalent)

ii.  Monthly welfare checks, and prohibition on leaving P alone or under care with unknown individuals.

iii.  Guaranteed two long summer and Christmas USA visits per year, fully funded by the F.

iv.  Automatic trial relocation provisional order trigger if any term is breached.

Furthermore:

v.  P will have private health insurance as part of F’s US employment contract.

vi.  M will have monthly child Support Maintenance of $14,000 per month (if F is employed in the US).

26.F’s proposal of “Mother’s Long term comprehensive interim support package” is as follows.  Other than the apparent contradiction in terms of the title of this proposal, F offers:

a.  Rent-free apartment + utilities (4 years lease).  This also includes the use of a car and a one-time $40,000 “safeguard escrow” to purchase furnishing.

b.  Financial safeguards of $18,000 / maintenance (24 months, escrow backed).

c.  $80,000 travel fund for children’s visits at $40,000 per annum for two years, for M to fly to see children or vice versa. 

d.  Visa assistance : Letters of support for M’s visa from F and his family members, and professional help if renewal fails.

e.  H’s family “authorized loan support” for P’s trial removal. H’s parents and sister will provide a “safeguard escrow loan” of $100,000, which can be drawn by M if F is unable to pay all or part of the monthly maintenance.  Family member will replenish this amount within 60 days of any need for use for up to 24 months after P moves to the US.  After 24 months, the $100,000 safeguard escrow will be used for the annual children air travel and access fund capped at $40,000 per annum.

27.F’s proposal is made on the following bases:

a.  Education harm, saying that the local school has failed P

b.  M has no plan and no credible solution as she has no employment nor housing plan nor financial capacity to provide a stable environment for P; while proposing he has free housing, and financially supported by his parents and sister.

28.F also says his plan allows for P to spend more time with his mother (via the visitation package), father, brother and extended family; and substantial cost savings of $50,000 per month on rental alone (which was the approximate amount F paid for rental when he was in HK).

29.Proposal with regard to access if trial removal of P is approved:

a.  Existing unlimited online access between siblings and parents to be maintained

b.  P to spend 100% of Summer with M (3 months)

c.  P to spend 100% of Christmas with M (1 month)

d.  M to have 6-month visa to go to the US hence M can spend 6 months with P in addition to the above times.

30.Proposal with regard to access if P to stay in HK;

a.  P to spend first half of Summer with F and L, and second half of Summer with M and L

b.  P to spend first half of Christmas with F and L, and second half of Christmas with M and L

M’s case

31.M opposes F’s application.  It is her case that the finding of facts in the First Relocation Judgment, upon which she relies, remains relevant.

32.Her summary positions are as follows:

a.  F’s conduct causes emotional harm to P.

b.  P is closely bonded with M, who has been his primary carer all along.

c.  P feels that he was bullied by F as well as L.

d.  M does not have permission to live in the US, she lost the opportunity to obtain US residency after F withdrew his sponsorship of the Green Card in 2020.

e.  M’s visit to the US may be obstructed (see the First Relocation Judgment at paragraphs 91-95).

f.  F’s efforts to diminish P’s relationship with M would continue if relocation were granted.

g.  P’s wishes to stay with M is very clear.

h.  P’s status quo, as to being born and raised here, and under M’s care.  

33.W’s counsel made a number of references to the First Relocation Judgment in his opening submission, relying thereon to demonstrate F’s continuous pattern of abusive behaviour, paragraphs 15, 16, 17, 108, 115 and 119 were referred and will not be repeated here.  W’s counsel reminded me of my finding that F’s conduct towards P was emotionally abusive (paragraph 19) and verbally abusive (paragraph 119) and that there was a risk that relocation would sever P’s relationship with M (paragraph 20).

34.W’s case is that H’s conduct towards P has not changed, citing the following incidents since my First Relocation Judgment in January 2023, when in May 2023, September 2023, August 2024, January 2025, and October 2025, P had left access with F as a result of F’s conduct, a number of these instances were recorded on Whatsapp messages between M and P, and between the parties.  Some of these recorded instances of P calling to M for help, to come pick him up, saying that F was bullying him, asking her to hurry, and how F kept on badmouthing his local school and calling people there “scumbags”.

35.M also finds F’s proposal unacceptable.

Mother’s Open Proposals

36.If P remains in HK and L goes to the US

a.  The parties to have joint custody of L (in abovementioned Order dated 21 May 2025)

b.  M to have sole custody of P

c.  M to have care and control of P

d.  F’s access as follows:

i.  Remote access: unrestricted telephone and video call access

ii.  School holidays: provided F gives 4 weeks prior notice of his intention to undertake any holiday access, he shall have access with P for half of the winter holiday and up to 4 weeks of summer holiday each year.

iii.  Term time: in the event that F visits Hong Kong during term time and provided he gives M at least 4 weeks of prior notice of any intended trip, he may have reasonable daytime and / or staying access with P in HK during such trips.

iv.  School holiday and term time access shall take place in HK unless otherwise agreed by M and F in writing.

e.  M shall have general leave to temporarily remove P from the jurisdiction of HK from time to time.

37.If P is in the US:

a.  Both parties shall have joint custody of P.

b.  F shall have care and control of P.

c.  M shall have the following access:

i.  Remote access: unrestricted telephone and video call access

ii.  M shall have access with P ad L for the winter holiday and the first half of the summer holidays each year.

iii.  Term time: in the event that M visits [the US] during term time and provided she gives F at least 4 weeks of prior notice of any intended trip, she may have reasonable daytime and / or staying access with P in Connecticut during such trips.

iv.  School holiday access shall take place in HK unless otherwise agreed by M and F in writing, and F shall pay for all flights and travel expenses.

Issues

38.The issues before me is whether P’s best interest lies in relocation to the US with his father or staying in Hong Kong with his mother.

The Legal Principles with regard to Relocation

39.The law is well established with regard to consideration for a permanent removal application.  The Court undertook the very same exercise back in 2023; and the legal principles, for completeness, are repeated here under.

40.My starting point is found in s.3 of the Guardianship of Minors Ordinance (Cap. 13). It states that the best interest of the minor is the first and paramount consideration.

41.The applicable principles governing relocation application were based on the English Court of Appeal case of Payne v Payne [2001] Fam 473 and adopted by our Court of Appeal in SMM v TWM [2010] HKFLR 308, [2010] HKLRD 37 CA where Cheung JA summarised them at §21 of his judgment as follows:

“(a) …

(b) …

(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)”

42.In the case of BA v BL (Child Relocation) [2019] 4 HKLRD 23 the Court of Appeal per Cheung JA reiterated and further elaborated on the approach to be taken in relocation cases: 

“4.12  This led to the more recent decisions of the English Court of Appeal such as K v K where it is stressed that, in the determination of applications for permission to relocate, the welfare of the child was the paramount consideration … The three judges in K v K, Thorpe, Moore‑Bick and Black LJJ were of the same view on this point.

4.13  …

4.14 … 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.

4.15...”

43.I also found the following from Lady Justice Black (as she then was) in the abovementioned case of K v K [2011] EWCA Civ 793 to be of assistance:

141.  The first point that is quite clear is that, as I have said already, the principle – the only authentic principle – that runs through the entire line of relocation authorities is that the welfare of the child is the court’s paramount consideration.  Everything that is considered by the court in reaching its determination is put into the balance with a view to measuring its impact on the child.

44.HHJ I Wong has in his recent case of JTMW v NAV FCMC 8504/2017 [2020] HKFC 244 succinctly summarized important points of principles enunciated in the case of ZJ v XWN at paragraphs 53 - 55:

53. 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. ... 

54. 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. 

55. 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].

45.The consideration of above guiding legal principles will be incomplete without citing what has been referred to as the welfare checklist factors, which have been listed in our “Children’s Proceedings (Parental Responsibility) Bill, and has yet to be passed as law in Hong Kong (the “Welfare Checklist”).  These are factors that should be taken into account when determining issues relating to children and where their best interest is to be considered:

a.   the ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding;

b.   the child’s physical, emotional and educational needs;

c.   the nature of the relationship of the child with each of the child’s parents and with other persons;

d.   The likely effect on the child of any change in the child’s circumstances;

e.   The child’s age, maturity sex, social and cultural background and any other characteristics which the court considers relevant;

f.   The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

g.   Any harm which the child has suffered or is at risk of suffering;

h.   Any family violence involving the child or a member of the child’s family;

i.   How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

j.   (a broader formulation along the lines of) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

k.   The range of powers available to the court under this Ordinance in the proceedings in question.

l.   Any other fact or circumstance that the court thinks is relevant.”

46.With these principles in mind, I shall proceed to apply them to the case at hand.

Social Welfare Officer’s and Clinical Psychologist’s Evidence

47.The following have been produced by the SWO and CP.

Date of report	Clinical Psychologist Report	Social Investigation Report
2 August 2021	CP Report 1 (SL)	SIR 1 (L)
3 December 2021		SIR 2 (F)
8 August 2022		SIR 3 (F)
9 August 2022	CP Report 2 (LCY)
10 May 2023		SIR 4 (F)
22 August 2023		SIR 5 (F)
5 September 2023	CP Report 3 (LCY)
22 January 2025		SIR 6 (F)
7 May 2025		SIR 7 (F)
12 May 2025	CP Report 4 (W)

48.Both the CP Ms W and the SWO Miss F who produced the most recent reports gave oral evidence at the trial and was cross examined by both parties.

49.More of their evidence will be considered and summarized below.  To start with, their respective recommendations in their latest reports are logged below and worth quoting in full:

From the 7^th SIR dated 7 May 2025

31. Meanwhile, P's view would become considerable weight since he was over 12 years old and was mature to express his personal view based on his expressed preference on the proposed move. More importantly, P could clearly articulate his wish basing on his evaluation of his current circumstance verse the future plan of moving. This implied a change of custody and care under his father. During the current social investigation, P made very clear about his wish not to relocate to the U.S. stating the impact on him, which he could comprehend if he moved with his father and elder brother. His views carried quite a determinant factor into the relocation plan since he would be the one who would have to experience and adjust to the change of life.

32. When making a comparison of the parents' strength and weakness in childcare and parenting, … the Investigation Officer would be sensitive towards the father's inattentive responses towards P's wish and emotion after P's views being shared on relocation. This somewhat indicated the parent's inefficacy in listening and paying heed to the child's need and wish, which was an important and paramount factor in assessing the parenting capacity on supporting or at least addressing to the adolescence's emotional need. On the other hand, the mother was observed to be attentive and patient to meet P's daily care and emotional needs as well the way to give proper guidance as indicated from their close and intimate relationship.

33. In conclusion, the Investigation Officer remained considering the parents were maintaining their love and concern over L and P, which could also sustain the siblings' relationship as far as they could, even though the children were under split care and living arrangement since 2021. However, most of their views in primary child decision, including education, child welfare and future living, not to say relocation, became the parents' core disputes arising from their varied strengths and weaknesses in personality, which drew them into the preference of their conclusion. From their point of view, the parents held no doubt about their point of view that were good in and of themselves as well as for the best interest of their children. For the case of L, the Investigation Officer supported him to relocate to the U.S., which the parents had already reached their agreement on the decision. For the consideration on P, the Investigation Officer had to estimate the potential harm as well as the impact of relocation in terms of change of residential arrangement and the child's care arrangement, if it was against the view of P. Those factors needed to have grave considerations included the compatible character between the father and P as well as the ability of the father to be capable and sensitive to the child's emotional need. Besides, it would be especially important, which the mother's role to counteract and being a protective factor to the child, who would no longer be easily available while her degree of involvement would be highly reduced upon the child's relocation if the mother expressed wish to continue living in Hong Kong. Although the father's relocation plan in terms of housing, education and family support presented to be a comprehensive and well-suit package to the sons according to the father's depiction, the Investigation Officer had to conduct a balancing exercise in making a recommendation on the relocation proposal, which the child's ascertainable wish, feeling, emotion and psychological needs were also to be addressed. Having carefully considered all the relevant factors, the Investigation Officer tended not to recommend P to relocate to the U.S. §§31-33

From the 4^th Psychologist Report dated 15 May 2025

89. The children had indicated their divergent views on the relocation. … P, however, has indicated that he wanted to stay in Hong Kong, though he is open to studying abroad at a later stage. He stated that he had strong bond with mother and they needed mutual support. Even in Hong Kong, he found it hard to voice out his needs, which was not heard and acknowledged by father and L.  He worried that he would not be able handle the bullying from father and L if mother was not available to him. During observations, it was noted that his father and L tried to persuade P about the benefits of moving to the US, despite P's repeated insistence that he did not want to go. P eventually had an emotional outburst, which his mother helped soothe eventually. Father and L speculated that P wanted to go to US but he dared not to voice out as he was pressurized by mother. Clarifying with P confirmed that he genuinely wanted to stay in Hong Kong with his mother.

…

91. Unfortunately, there is no perfect solution on relocation issue. At the present stage, mother has agreed to L's move for his schooling in the US. L has expressed a strong desire to study in US. P, meanwhile, has a strong attachment to mother and clearly stated that his need for mother's care and support, and he preferred to stay in Hong Kong with mother. Reaching adolescence, both L and P wanted their views and preferences to be heard and respected in future arrangements. As teenagers, they were more mature to hold the emotional connection and able to maintain relationship with a parent or sibling across the time and space. It is believed that they could manage to maintain the family relationship using electronic devices, amid that periodic face-to-face interaction and physical visits during school holidays were also important to strengthen the bonding. Observations suggested that L and P share a close bond, which will be essential in navigating the challenges of coparenting amid relocation. Both parents have previously demonstrated good effort in maintaining sibling relationships. It is hoped parents will continue to facilitate contact between the siblings to maintain their bond and hence also preserve the parent-son relationship. Considering the developmental age of children, parent-child bonding, parent-child fit, parent's motivation to maintain the sibling bond, and children's satisfactory adjustment under the splitting of child care arrangements, I am inclined to invite court to give considerable weight to the ascertainable wishes of the children on the relocation issues. L indicated his strong preference to study in US while P indicated his view to stay in Hong Kong with his mother.

92. One significant issue that came to my concern for this family was that children were heavily involved in parental issues over the years. The parents' conflicts and discrepancies over relocation inevitably drew them to take side with the parents. Both children were increasing align with either parent. L was more aligned with father while P tended to protect mother. Notably, the siblings also argued over parental issues which inevitably affected sibling relationship. It is vital that the children take a break and focus on their own development needs, rather than being torn by the adult matters and loyalty conflicts. §§89, 91-92 

Discussion

50.I find that my position regarding the parties have not changed from my previous stance during the First Relocation decision.  To set the scene, the following observations remain true:

a.  I continue to find M to be a much more credible witness, in particular where views contradict

b.  I find that the bullying consistently referred to by P has perpetuated over the years, and might well has intensified in the face of this current application.  The only difference being P’s improved ability to handle them be it from repeated “practice” or improved maturity.

51.I will start the analysis with following the guidance of the above-mentioned precedents.

Is the application genuine and not motivated by H’s desire to exclude M from the Children’s life

52.I made my finding on this back in my First Relocation Judgment; my view remains the same.  

53.Despite F’s seemingly inclusive proposal, I am of the view that his underlying opinion of M remains the same. 

54.F has continued to attack M with regard to his alleged physical altercation between her and L, which will not be a subject I will broach on in detail for this decision.  H has been critical of M in aspects of her parenting towards P (lack of care), her personal life, her friends (whom he called “whores”), and had bad mouthed her repeatedly before both L and P, to the extent that P had felt the necessity to often spring to M’s defence. 

55.This has perpetuated and was reflected in the 3^rd Psychologist Report from August 2023 which records F speaking ill of W in front of L and the CP, saying W never showed interest or care about the Children’s interest and attempted to separate the siblings.  P concern is recorded at §5.3.8:

[P] is still afraid that no one there to offer help to him when the father and L say things negative on the mother or stop him from meeting the mother because there will be no one could offer help at that time.

56.The 4^th Psychologist Report dated 12 May 2025 shows that P drew a dragon to represent his F, reflecting the latter’s “tendency to speak negatively about his mother” (§50).

57.F then described M’s HK plan in this manner: “evictions, instability, unsafe isolation of P”.  The way F thinks of M can also be gleaned from his submission / proposal; I do not see his sentiments as being conducive to an amicable co-parenting scenario.

“Unfortunately, the evidence demonstrates that the Mother Prioritizes her personal references over [P]’s well being. The Mother’s resistance and obstructions to relocation stems not from concern for P or his best interest, but from her personal desire to remain in “vibrant” Hong Kong, where she enjoys her social circle, a luxury gym membership, and a prime Central apartment, various unknown boyfriend(s) providing her money, and manages to avoid finding full-time gainful employment, all while enjoying a lifestyle no one especially the mother can afford.” (F’s emphasis) F’s Open proposal §25

58.I also make reference to F’s behaviour in the way he had involved the Children, in particular L, into these proceedings, (mentioned in various reports over the years); which I take the view to have seriously undermine L’s relationship with his mother, and which may well be permanent.  It could be interpreted as strategic if he had done this deliberately, but could be worst if he is not conscious of his own actions. 

59.F has harboured his strong negative feeling of M over the years.  I am therefore of the view that should P be in his long-term care and control in a relocation scenario, F would continue with his disparaging remarks of M and react strongly to P expressing his feelings for M and his need for her; or P may have to suppress his emotions in fear of F’s reaction.  I have strong concerns as to whether F would encourage and facilitate P’s contact with M, and it would be well within his power to curtail P’s contact with her.  I also believe that the situation would cause distraught to P and harm him psychologically.  

60.On a balance of probabilities, I take the view that F’s relocation plan is made so as to exclude P from M.

Is the application realistic and found on proposals well researched and investigated

61.Dealing first with the basis of F’s proposal.

62.F’s concern was about P suffering from education harm in a local school.  It is true that P had spent time at a local school, and for obvious reasons struggled with the Chinese language part of the curriculum.  Referring back to the VOM Decision (paragraph 98) wherein I cited that F has continued to harp on this while it is clear that P had no choice but to attend a local school when F had failed to pay his school fees; a predicament completely caused by F, yet he had used this in serious criticism of M.  During the trial, F has proposed that his family can provide funds for P’s education in the international school, but when asked for how long, his sister in oral evidence said that she could only commit to a maximum of two years, M rightly consider this to be inadequate.  It has then transpired that at a hearing September 2025, parties reported that F has now found the funds for P to attend the A.  This alleged education harm is therefore no longer a concern.  

63.On the face of it, F proposes an attractive offer with a big house, attractive school grounds, and extended family presence.  I have the following comments on his proposal:

a.  F’s package for M provide only short terms offers of accommodation and money. 

b.  F’s package suggests that M will travel on a 6-month visa, then adds 3 months of summer and 1 month of Christmas saying M will have 10 months with P in the US per annum, without explaining how M can have 4 more months on the 6 months visa.

c.  None of this offer make sense if M cannot enter the US, there is no guarantee and beyond the control of either of the parties. 

d.  Despite calling the offer “long term” and “comprehensive”, it only provides two years of travel funds, two years of maintenance, and accommodation for 4 years.  What happens after that for M?  In the meantime, is M’s life on hold?  Can and should she find a job?  And without a job, will F provide for any shortfall?

e.  F’s case does not provide any basis for his promise of Judicial safeguards in the US, this is the first time this has been put forward, and wholly unsupported by evidence as to how this is to be achieved.

f.  F’s condition of not leaving P alone nor with strangers is an impractical one.  Throughout the various SIRs, there has been no mention of risk, nor lack of care on the M’s part, one could see that with the love that both the SWO and the CP spoke to of M toward P, she will not put P at risk, and such is my finding.  Furthermore, M is entitled to move on with her life, and that involves meeting new people who will be in P’s life. 

64.M’s reaction to this at trial echoes my observation that she cannot put her life on hold, that is, to be offered 6 months of life in the US and nothing else for the rest of the year.  She also adds that F “loves calling the police” on her for things she did not do; and that F and his sister will involve social services in the US, and find ways to put her away for child abuse; and that she has no money to defend herself should this happens.  It was true that F has called the police a number of times, yet no action has ever been taken against M, nor protection called for the children.  Her concern is not entirely unfounded.  

65.To supplement on M’s most recent evidence with regard to her US visa, she said this at the hearing:

Okay. I did, and I did get 10 years American visa. And that is actually very important for everyone to know that there was a lot of people. There was a few windows open, and people have been moving –– literally, like, I was listening, like three, four questions, and they’ve been out of the window, like two, three minutes. No documents needed. Officers just been asking people questions, and they would be moving. I spent 40 minutes in a booth. He was asking me so many questions. I was just –– it’s just –– I was a step away from not getting a visa. So what happened is, after explaining the whole situation, he said, “You do not have attachments with Hong Kong. You do not have a job. Your kids, you are citizens. You used to live in US. You used to have a green card.  People like you are not candidates as they –– like, they could want to live in US.”  Again, he asked me if I brought my bank statements, which I didn’t, which I had nothing to show. If I would, I would not get a visa. I told million times to respondent that that is requirements for tourist visa to show your bank statements. This is really important.  What I showed that he –– well, the court ordered about $44,000 maintenance. I showed that. He asked me if he pays me that. I said, “Not exactly.” He said do I have sufficient amount to show that I can live in US for six months. I said that I do not have right now, but before my ex would go to –– would leave Hong Kong, we believe he would pay outstanding maintenance. Then I will have. And he told me –– he left. There was another guy. Then he came back. They’ve been talking. Then he came and he said, “I’m going to give you a visa, but when you enter US, be prepared to show all your employment in Hong Kong or bank statements proving that you can sustain living for six months in US. So that was exactly what actually immigration lawyer staged. So he reminded me once again that getting visa does not guarantee me entering to US, which is on the front visa page. It is a big sign on the left that visa does not guarantee you entering. It’s always up to the officer, immigration officer.

66.I accept her oral evidence.  While M does have a visa now, it does not guarantee entry into the US, this was the finding in the First Relocation Judgment, and remains true. 

67.I will also add here what the CP says under cross examination:

Actually, I think in the conclusion, I also invite the court to consider the opinions of the children because they’ve already reached the stage of adolescence. I think the court also has many other factors to consider and this is not the only factor. I think the father all along has said something very positive about the hardware, including the housing, the transportation. But I also have some concern about the software part, if a relocation actually happens. Say for example, how the father promotes the relationship between the mother and the children, especially L. And also how the father would conducts the communication in co-parenting. So other than the hardware side, these are also factors to take into consideration. This also affects the situation when the kid relocates there and also how well they adapt.

68.All things considered, I find F’s proposals unacceptable, he has merely focused on some nice “hardware” but has ignored practicality.  His proposals are neither long term nor comprehensive.  On the basis of the precedents quoted above, I can stop here and F application is to be dismissed; but for completeness, I shall proceed.

Is the application motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive?

69.I am of the view that F believes what he is doing is for P’s best interest, but referring to the above analysis, I do find that F has the intention to exclude P from M’s life.  His conduct will perpetuate as he lacks insight into its impact on his Children, and the consequence is that it is causing harm to P.

Will the relocation Application be detrimental to M and her future relationship with P

70.I repeat my findings in the First Relocation Judgment, these are in paragraphs 15, 16, 109 and 110 of the decision.

71.When F was cross-examining the CP about his relocation plan with regard to access, the CP has this to say referring to §90 of her report:

But I also mentioned some of my worries here because they previously had some very mutual negative perceptions. And also because of the previous conflicts, limited communication, and low level of mutual trust in the relationship, could the access arrangement suggested by the father be feasible?

72.I have no doubt that M’s relationship with P will be negatively impacted should the relocation be allowed.  P would likely to be distraught from F and L’s ongoing attitude towards M, and also from his mother not being around physically for him to turn to for comfort; it is also hard to predict how P is going to cope in this context.  I do not have conviction that F would continuously encourage or facilitate P’s contact with M; this situation could be worse if M is unable to enter the US. 

Impact on the F if Relocation Application is dismissed

73.There is no evidence of F’s alleged emotional distress.  While I do accept that there could be emotion on separation, I have no evidence to support that it could be described as “distress”.  It is accepted by both parties and recorded in the reports that the access had been smooth, there has been a lot of freedom of movement for P to visit father, and no evidence whatsoever of M’s obstructive behaviour regarding access.  Remote access has been proposed to be continuously opened to facilitate relationship between P and F and L, and physical access has been proposed subject to conditions.

Other Factors

74.Referring to the abovementioned Welfare Checklist, I will take into account the following factors mentioned therein in the rest of this Judgment:

a.  Wishes of the child

b.  The child’s emotional needs

c.  Any harm the child is at risk of suffering  

d.  The capability of a child’s parent to meet the child’s needs

Child’s Wishes

75.P was aged 12 at the time of this hearing.  It is important to have in mind the importance of giving weight to a child’s view as emphasised by the Court of Appeal in YSYM v LHB [2020] HKCA 586 at §71, citing the following paragraph from Rix LJ in the case of Re R (Residence Order) [2010] 1 FLR 509:

“[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.’

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.’”

76.There is a need to establish that there is a good basis to take into regard P views at his age.  On this, I turn to W’s submission which relied on the observations of the CP and the SWO:

“It appeared that [P] offered a somewhat more balanced view of what is going on at home.  It is possible that P is a more reliable source of information” (CP1 dated 2 August 2021 at §8.3.3.2)

“[P] also impressed me that he was able to describe his emotions and also sensitive to other’s emotions” (CP2 dated 9 August 2022 at §4.3.1)

“[P] expressions reflected that he is sensitive to emotions and is also very good at observing the family dynamics” (CP3 dated 5 September 2023 at §9.1.1)

Miss F the SWO says that P “could clearly articulate his wish basing on his evaluation of his current circumstances verse the future plan of moving” (SIR7 dated 7 May 2025 at §31)

77.In reading the various reports, I can see that P has matured rapidly over the years.  It is also noticed that P’s wishes have been consistent throughout the reports:

In the 3rd SIR dated 8 August 2022 prior to the Relocation decision in January 2023, the following was said:

Keeping his voice down and looking around whether L could listen to our conversation, P talked softly to the Investigation Officer that he did not want to go to the U.S. with his father and L. He thought that he would not see her mother "forever" after relocating to the U.S. since his mother could not go to the U.S. "forever" due to her visa problem. P also worried about being bullied by his father and L in the U.S..  Yet, he could not indicate exactly what did the bully refer to or quote any past example.  On other hand, P would miss his father and L if they would relocate to the U.S.. P appeared a bit tensed and unhappy during this part of interview. P did not consider to meet the Judge but want to share through the Investigation Officer that

"I don 't want to go US because of uncertainty"

However, P could not tell exactly what is his uncertainty refer to. (§18)

…  In playing a card game on Bears' Feeling, P selected two mixed feelings Bear Cards, with an excited/angry face stood for his father whereas his mother's cards were two cheerful/happy Bears.  P choose two Bear cards represented Hong Kong, which was a relaxing Bear and a Bear with stick out tongue. For the U.S., he chose two cards, which a Bear held the chin and another Bear with an angry face. If P could go to the U.S. with his mother, P chose a happy flying Bear card instead. (§19) 

P maintains his views in August after the First Relocation Judgment as the issue of relocation continues to loom over the family, the following is from the 5^th SIR dated 22 August 2023:

After meeting different professionals repeatedly since 2021, P further revealed that he became more mature to express his own wishes and thought when comparing the last interviews with the Investigation Officer. Instead of being bothered by the "wish" and "voice" of the parents, P stressed that he was confident and clear about what he preferred and hoped. P looked to the Investigation Officer with smile after his sharing.  Furthermore, P shared that he would not leave Hong Kong until 16 years old since he loved Hong Kong, the place and the people and especially missed his mother since he believed his mother would continue staying in Hong Kong. Also, worried if his father would bully him in the US and he would have nowhere to stay but now he could stay with his mother. All in all, P felt that he was settled now under the care of his mother and enjoyed having regular access with his father and joint access with L. Therefore, he wished the current care and access arrangement to remain unchanged ... (§24)

As for P, he was observed becoming mature enough to express his own will and wishes on his care arrangements standing out from the parents' preferences. He no longer trapped between the loyalty issue between the parents' dispute and could enjoy keeping peace, especially after the relocation issue was settled by Court that he did not need to make choice between the US for his father and Hong Kong for his mother. P's adaption to local school as well as the life continuously in Hong Kong appeared positive as reflected from his welcoming response to new public school. (§28)

The same sentiments can be seen from the CP’s report one month after, 3^rd Psychologist Report dated 5 September 2023:

5.3.8 Concerning the father's wish to send him to US for study, P still expressed his worry about not seeing the mother if he goes to US with Dad and L. He still does not want to go because mom cannot go. He is still afraid that no one there to offer help to him when the father and L say things negative on the mother or stop him from meeting the mother because there will be no one could offer help at that time.

5.3.9 Regarding the possibility that L and father move to US while he stays in Hong Kong with mother, he told that he would miss them but he perceived that it may good that L will have no more conflicts with the mother.  P does not think that such separation means abandonment on him or rejection on him. Rather, he tends to believe that both L in US or he in Hong Kong will have the same bright future.

5.3.10 …. He is again afraid of father's repeated bullying on him after he told his view, just like what had happened last time (last year's assessment). He still remembered that last time that after he told father that he wanted to stay with mom and did not want to go US without mom, the father was angry right away and repeated to say what he had said of how bad he would be in Hong Kong. (§§5.3.8-10)

In the most updated 4^th Psychologist Report prior to this hearing filed on 12 May 2025:

49. He stated that he was fine with the current access arrangement. … However, he felt annoyed by the constant negative remarks from his father and L about the Chinese public school. At times, he argued with his father and L, especially when the topic came to relocation and his mother, which he described as a "mood killer", making him felt annoyed and stressed and difficult to stand. Sometimes, he needed to leave father's place earlier before the situation got worse.

50. When asked to complete a genogram exercise using animals to represent his family members, P chose a dog to symbolize himself, as he felt its happy and curious expression mirrored his own personality. For L, he selected a sea lion, describing it as smart but somewhat lazy. For his mother, P picked a wolf, which he characterized as energetic and confident. In contrast, he chose a cow to represent his father, noting that its facial expression conveyed a lack of energy. To illustrate his relationship with his father, he selected a dragon, reflecting his father's tendency to speak negatively about his mother and his constant focus on the relocation plans to the US. Conversely, his relationship with his mother was depicted as harmonious, represented by a blossom tree, symbolizing their many shared interests. He described his mother as an angel during difficult times. For his relationship with L, P chose a frog, highlighting their mutual fascination with play. Regarding the relationship between his father and L, P selected a globe, indicating that his father serves as a globe for L, guiding his direction. Lastly, for the relationship between his mother and L, he chose a scorpion, noting that L often accuses their mother negatively, while she remains calm and composed in response.  (§§49-50)

……

53. Regarding the relocation plan, P stated that he did not want to relocate to the US because he is strongly attached to his mother. He stated that he needed his mother's care and that his mother also needed his support. He emphasized that his life with his mother in Hong Kong would be happy and that he would enjoy his schooling as they are surrounded by friends, although he acknowledged that he would miss his father and L. In response to his father's and L's speculation that he wanted to move to the US but was afraid to express openly with the pressure from mother, P appeared angry and reiterated clearly that he genuinely did not want to relocate to the US. When asked about if the court approved his relocation, P expressed concern that moving to the U.S. would lead to more arguments with his father and L. He felt overwhelmed by the prospect of constant arguing and potential bullying by his father and L without mother being physically and emotionally available to him. He mentioned that while it might be best for L to move to the US with his father, he believed that it would be better for him to stay in Hong Kong with mother, especially if their father could provide adequate financial support for their living arrangements in Hong Kong. (§53)

The following excerpt is from the last SIR (7^th SIR dated 7 May 2025) prior to this hearing:

Views and wishes of P

22.  P had an individual interview at his mother's home during the Investigation Officer's home visit. He appeared relaxing and confident throughout our contact. P initiated the conversation with the Investigation Officer by stating that he had argument with his father and L always due to the relocation plan to the U.S. since they urged him to go with them to the U.S·. together. Yet, P stated firmly about his wish to stay in Hong Kong and told the Investigation Officer that he had indicated his wish to his father and L over 100 times. P appeared annoyed by his father and elder brother since he thought that they never respected his will and showed patience to understand what he thought but kept on persuading him to relocate to the U.S. with them.  Thus, P worried that he would have difficulty to adjust his life if he was required to live with his father when relocating to the U.S. in view of the father's overcontrolling parenting. … All in all, he preferred to stay further in Hong Kong, where it was his familiar community, having his mother, friendship and peers. Meanwhile, he considered the plan offered to his mother to the U.S. was unrealistic due to her U.S. visa problem. Although he would miss his father and L if they depart to the U.S., P considered their future contact could be easily maintained by video access and he would also play on-time video game with L. P was observed to state straight and firm about his opinion on relocation plan during the interview with the Investigation Officer. He also assured the Investigation Officer that he lived happily now with his mother, who was caring and always support him to face any challenges or sadness, whereas his father was not ready or even fail to address his emotions. All in all, P hoped to reflect his view to the Judge that he did not want to go to the U.S. even though his father and elder brother would go though he did not intend to meet the Judge personally. (§22)

78.The excerpts from these latest reports prepared for the hearing demonstrates an impressive maturity on P’s part. 

79.F says the child’s view is coerced.  He cross-examined the CP on this, citing that M should not have taken P to see the psychologist and that P kicked up a tantrum at one of the assessments due to the M’s influence.  The CP explained that the tantrum was caused by the topic under discussion, being F and L talking about the relocation, which was when P became annoyed and upset.  She also says that it was because F who “did not confirm with him his feelings, and also listen to the voice of P”.  

80.The SWO also testified, when cross-examined by M’s counsel, that what P said to her was his sincere, genuine and personal view.

81.Despite F’s attempt to cross examine the SWO and the CP, in my view, both witnesses’ evidence with regard to P’s genuine wishes as recorded in their reports, remains unshaken.  I do not accept F’s contention that P has been coerced into expressing his wishes of staying in HK.

82.P has a clear understanding and appreciation of the situation, the history has seen him with his fair share of suffering over the years amidst the parental conflict, and his struggle through this.  It is my finding that P is mature, he comprehends his choice, he has articulated it clearly, and his views must be fully taken into account.

P feels being bullied

83.Ever since the consideration of the first relocation application, P has been talking about being bullied by F.  I have made several references to this in my First Relocation Judgment, the following are some excerpts from the reports:

In the 1^st Psychologist Report dated 2 August 2021

When the father was interviewed after the observation, he said that he purposefully called P 'Meatball' and not his name because he did not want P's peers to become jealous of P when P was always the one winning.  So he called him 'Meatball' by protecting him. The school has previously reported that P does not answer when his name is called. It is uncertain if this is related to how he was called at home. Or does P also think that he should not be called by his name because it will invite jealousy? In the post-observation interview, P said that he often felt that his father was bullying him, saying that he is stupid and calling him a fucking idiot. He said that he did not like his father calling him names. (§8.4.2.7)

When P said to his father that he wants Sunday with mom and Saturday with dad, the father said but church is on Sunday. P said he will go to church first and then spend time with his mother. The father's response was, 'she is not home anyway'. It is unclear with the father was supportive of the children having contact with the mother. The father did not ask any open-ended question. He asked P many leading questions, … Do you feel I am bullying you? Somebody holding you back?' The father asked a number of questions before P has a chance to answer them. P was bombarded with many questions. P kept his silence. His father continued to ask P, 'Do you want to go to USA? We have no office. If business closes down, we have no money. No way grandma will keep sending money so you guys need to be clear about what you want and why.' The father then asked more questions, 'P, do you like USA? Feels like Home? What type of school do you want to go to? And the path to get there? Do you like Greek class? P, what aren't you doing Greek? She told you not to?' Your grandma sent you money to learn archaeology.'  As P was bombarded with all these leading questions, P finally nodded when the father repeatedly asked him, 'did she stop you from going to church?' P appeared stressed out as he kept on fidgeting with toys. The father also told the children that, 'I have concern about you being alone with her.' He told the children that, 'my concern is that things will get worse ... . and USA is safe. It feels like home there.' From the above observation, it appeared that P is under stress when he is bombarded with leading questions; the father appeared to have expectations for the children to offer answers in a particular way. When the father does not get the answer he wanted, he kept on asking leading questions.  He also told the children openly about his stance and his concerns making it hard for them to express their views freely. From the information gathered in the observation, there is evidence to suggest that the father has an explicit influence on the children's view on their desirable living arrangements. (§8.4.2.8)

[P] said that they only watch TV at home, no playing. He said that he would like to spend more time with his father if his father spend more time with him. He said that he felt that his father was trying to make him agreed with him; forcing him to say yes. He said that it is afraid of him; if he does not say yes, his father will keep on asking questions or lecturing him. He said that he nodded because he was afraid of his father taking away his computer or his phone. He said that he was afraid to freely express his ideas to his father because his father would not give him basketball classes or would not allow him to play games with his computer. He said that he felt that he had to lie because he is afraid of his father being mean to him. (§8.4.2.10)

From the 2^nd Psychologist Report dated 9 August 2022

P told that father had told him about the relocation plan. He sensed that father seemed to be nicer to him than before as to convince him to go to USA. However, he did not want to go because mom cannot go. The father may keep them there forever without mom and he cannot see his mom forever. He is afraid that father will bully him because there is no one to help him. He said mom did not support the plan because she can't go to the USA as dad has cancelled mom's green card. He heard about these things from mom. When I asked him about what it would be like to him if mother can come to visit him for some times every year, he shared that his upset may be just a little bit less only as he still wants to see his mom everyday.

P described the father bullied him. Father told him that if they were going to stay in Hong Kong, the two boys would have to study in local public Chinese school or to live in the street as the father no longer have money to support the living expenses in Hong Kong … It seemed to me that P's description reflected that father's saying tended to give him a sense of insecurity and pressure and he did not feel secure enough to express his need or fear to his dad. (§4.3.7-8)

From the 3^rd Psychologist Report dated 5 September 2023

... However, [P] shared that father seemed to make things escalating. He had paid less maintenance to the mother. He kept telling to P that he would live in poverty and would be homeless if he stays in Hong Kong. He perceived that father kept bullying him by repeatedly saying these messages to him, such as father said studying Chinese is stupid, mother did not go to work something like that. He perceived that these are not true. …

P shared that he felt quite annoyed by both father and L's lies and bully. Quite often after father drunk quite a lot at home, he would repeatedly talk louder to him repeated his saying. Father still asked him and L to attend online interviews for the [G] Catholic School. Father asked him to do so was for the good of L. He said he still did the online interview in order to avoid further bullying from the father. He however knows that he will continue his study in Hong Kong in the new school.

In facing this situation, P admitted that he on and off recorded down their sayings to prove that L and Father had said something not true or they had said something before but then they denied afterwards. Regarding mother's responses on his recording, he told that mother did not ask him to make the recordings or not to make. But for recently, as he found that both L and father usually repeated and repeated again on their bullying content, he was not very keen to make the recordings. He told that he tried to not to pay any attention on what they had said, or he would do something else to distract himself from thinking about their repeated saying.  (§§5.3.2-4)

He is again afraid of father's repeated bullying on him after he told his view, just like what had happened last time (last year's assessment). He still remembered that last time that after he told father that he wanted to stay with mom and did not want to go US without mom, the father was angry right away and repeated to say what he had said of how bad he would be in Hong Kong. (§5.3.10) 

P shared that he did not want to express his views in front of father and L. He explained that he still remembered that in the last CP assessment, father was angry at him right away after he shared his views on relocation. Father kept persuading him that it was bad for him to study in a local public school and live in poverty. P said he did not want to feel the pressure. He shared that the father would not really listen to him despite that he could explain or tell him about what he knew of his hew school. He perceived that it would be safer for him not to tell his view and feelings with the father, otherwise, father and L would bully him again... (§7.6.3)

84.P is not convinced, nor am I, that the F’s bullying is going to stop when he goes to the US.  On cross examination by M’s counsel, the CP has confirmed that the F is unaware of his own action; and that should the Court finds that F does use criticism, guilt, threat of poverty and bad future to pressure P; then it would be harmful to P, and would give P a sense of insecurity and pressure.

85.I find that P has been under such pressure, and that what F has been doing is a form of emotional abuse to his child.  In the light of F’s lack of self-awareness, and hence a lack of intention to change, it would be harmful for P to be placed in his care.

Consideration of various F’s allegations and concerns

Return Home Application

86.F calls this a return home application in his closing submission.  This is not.  F is mistaken in that he himself maybe returning home, but the US was never P’s home.  P was born and raised in HK, he only went to the US for holidays to visit his extended family.  This is not a return home situation for P.

M lack of care of P

87.It is my finding that F’s allegation that M is unable to care for P properly is unfounded.  None of the reports support this contention.  M had independently been looking after P for a number of years without a domestic helper.  F claims that M did not provide adequate food to P which is causing a “critical crisis to P’s wellbeing”, and therefore he had to deliver “critical groceries” to the mother; but this actually stemmed from the F’s non-payment of maintenance to M, and he chose to send food to M instead of paying her in compliance with the Court Order.  M had said in the past she would rather have the cash than for him to deliver food to her. 

88.F says P had been left unsupervised for extended period of time.  When F cross examined the SWO, the SWO said that according to their investigation, “M did not habitually or she did not leave P at home according to the record”.  “We have also checked with P to confirm with P that he’s actually under proper care.  So we don’t think that if P continues to stay in HK and be with the mum, he will be facing a risk.”  

89.F claims that there is evidence showing “unvetted men” providing financial support to M, raising child endangerment concerns.  M does admit to having a male friend, she also says under cross examination that there is no intention of remarriage.  As F has defaulted in his maintenance payment, it lies ill in his mouth to now complain about M possibly having help from friends.  There is no evidence that there is “Exploitation Risks” as put forward by F, as it would have been reported by the SWO.  It is also an inevitable reality that M may have other relationship in future, to suggest that these men need to be “vetted” (for what? And by whom?) is an unreasonable ask.

Lack of Finance for M

90.F spent a great deal of his submission on his lack of finances, details of which was the basis of his variation of maintenance application, and was dealt with in detail in the VOM Decision.  This latter decision was handed down only after the date of F’s closing submission in this case.

91.In the decision, I found that F has the ability to pay and made orders for:

a.  $20,000 maintenance for M; and

b.  $26,000 for P, and for this amount to be increased to $40,000 when he commences studying at an appropriate school, which is to be an international school instead of a local school, and which has already commenced.

F never appealed against this decision.

92.I have made the finding that F has the ability to shoulder this amount as he intends to work and he has financial resources from his family members; which is also evident from the financial offers he made in the current case.

93.I have also found that M has earning capacity, and will be in a position to find proper and long term employment when this 5 - year litigation saga is behind her.

94.I therefore do not feel that financial hardship is an issue here if F complies with my Court Order to pay maintenance, any failure to do so could be seen as strategic in order to change a status quo.

Separation of the Siblings

95.F says that it is wrong to separate the siblings.  P and L have lived separately with their respective parents under the split care and control Order made in August 2021.  This was still in effect until the time of F and L’s departure in the summer of 2025.

96.The reports have been made references to the relationship between the siblings:

From the 2^nd SIR 3 December 2021 and 3^rd SIR 8 August 2022

… Meanwhile, the sibling relationship was intimate and they both looked for more time to stay together. Being youngsters facing parents' marital breakdown with high conflict, their mutual support and assurance to encounter the crisis would be beneficial to their healthy development. (§42) SIR2

Fortunately, the sibling relationship was not affected in this split care arrangement, in which the children continued relating intimately and harmoniously during the Investigation Officer's observation. When approaching for their wish on relocation during the current social investigation, both P and especially L presented with great anxious if they might be "separated". Whereas, P also concerned the elder brother's feeling if his preference to stay in Hong Kong was revealed. (§25) SIR3

From the 2^nd Psychologist Report 9 August 2022

5.8 From the above observations, I found that it was still hard for the siblings to not get into arguments about the parents. They could share joy and fun and they had close relationship, but once the topics related to their parents and the relocation plan, P tended to be reactive and wanted to protect and defend the mother while his description about the mother and L interaction seemed to be more accurate, which was also consistent with my observation. L liked to defend for the paternal side, and focused on the mother's bad doing while he totally did not mention how his reaction and resistance towards the mother negatively interacted with the mother-son interaction. It was also consistently noted that L's capacity to understand other's emotion tended to be weak and he appeared to be quite rigid on his own principle more. The sibling was still easily affected by the parental conflicts or issues.

One improvement was present that both kids seemed to be cherished their play time and they were resilient, particularly for P, to be able to readjust his emotion and resumed a normal and close relationship with the elder brother. Obviously, the sibling relationship would be easily affected by the parental issue and a timely intervention from an adult is needed to help them to set a clear boundary for not to involving themselves in parental matters and relocation plan.  (§§5.8)

From the 5^th SIR dated 22 August 2023

16. The sibling's relationship was assessed by the Investigation Officer through the observation in the home visits. During the home visit at the father's abode, the siblings' interaction was harmonious, closed, and interactive, which both the children enjoyed lots of physical interaction with verbal exchange naturally. During their plays with their father, they maintained good team spirit although P once showed silence when he lost the game whereas L appeared not aware. Nevertheless, the siblings resumed playing hard once they were involved into their game again. During the home visit at the mother's abode, P and L appeared fewer verbal interactions. Yet, their body interaction was close that they enjoyed sitting or lying intimately and closely ... Overall, the interaction was spontaneous. (§16)

And from the 4^th Psychologist Report dated 12 May 2025

Overall, the sibling relationship between L and P appeared strong and affectionate. They fully engaged in the play activities and enjoyed each other's company. They cared for each other and genuinely wished for each other's well-being.  However, they were easily engaged in arguments over issues related to their parents and the relocation plan. L tried hard to convince P that he should move to the US with them by emphasizing the perceived the benefits, while P felt this was not the best option for him, expressing a desire to stay with their mother. Both of them remained firm in their respective stance, leading to tension in their interactions. (§57)

97.As recorded in the 7^th SIR, P is confident that he can keep his relationship with his brother.

Although he would miss his father and L if they depart to the U.S., P considered their future contact could be easily maintained by video access and he would also play on-time video game with L. P was observed to state straight and firm about his opinion on relocation plan during the interview with the Investigation Officer. (§22)

98.I place considerable weight on the reports which recognize the close bond between the siblings.  I am conscious I need to weigh the sibling relationship and the need to protect P from being further subjected to his F’s conduct.  As I do not see the risk of a negative impact on the siblings’ separation, I find that it is more important to ensure that P does not live under stress while in F’s.

Joint Care and Control

99.F says he has joint care and control of P with M, on this he spells out how much time he spent with P, how many meals he provided, how much groceries he bought for M and P, how much pocket money he gives to the Children and claims that his emotional caregiving to P is “equal or more than the mother”.

100.The Order of August 2021 was a split care and control Order wherein each child of the family lives with one parent.  What F has is a flexible access arrangement to P beyond the original access order, to which M agrees; this does not convert the Order into a Joint Care Order, and neither do any of his above factors change the nature of the Order.

101.F does not have a joint care and control of P with M.

Coercion of P to conceal M’s physical abuse

102.F has repeatedly accused M of physical abuse of L, and that on the occasion when P was present, M has “coerced” P into hiding the truth, and misled the police when F reported the matter.

103.As cited in the First Relocation Judgment, the relationship between L and M has been very tense, M’s access to of L repeatedly ended in arguments, and it is not a surprise that there might have been physical contact in the midst of heated exchange. 

104.P who was present, has said that the none of those exchanges were in the nature as alleged by L.  F was not present at those incidents, so it was solely on L’s account.

105.One such incident took place in February 2023 when F alleges that M has struck L on the face, this was recorded by P.  F says that the video was edited by M and P to present a false account. The video was produced in evidence in M’s 30^th affirmation.  F has alleged that only a part of the video was previously put into evidence, M contends that the prior “partial video” was not adduced to contest L’s allegation of being hit, but to show his attitude towards her during L’s access with M.  I have looked at the full version of 3:41 minute video, and it shows L speaking to M in an extremely discourteous and disrespectful and provocative manner, while videoing her at the same time.  M had then asked L to leave, with P in the background also asking the same; it also shows her taking the phone from L, L chasing after her grabbing at the phone and shouting and yelling, and M avoiding and eluding from L.  This incident was covered by the 3^rd Psychologist Report at §7.2.1.  It was also the CP’s observation that she did not see M hitting L; but she said to L that the video shows L’s mobile was grabbed by someone.  CP then says that “[L] then shifted to say that she hit him in other way that she had elbowed him”.  It appeared that L might have changed his story then when confronted.  It is my finding that M did not assault nor elbowed L in the face, as alleged by L and strongly advanced by F.  F says P has sided with M to help conceal the truth, I disagree.

106.F claims to have “longstanding evidence, documented in both SWO and PR, of P being coerced to lie and conceal the truth in order to protect his mother – often to his emotional detriment”.  F did not quote the references in these reports to support this contention, nor was there any cross examination on this topic at trial.  

L’s voice not heard

107.Furthermore, F says the following:

a.  That L wants to inform the Court as to how his mother has hit him.

b.  “L, .. a victim of child abuse, has repeatedly had his testimony and right to representation by the Hong Kong Legal Aid obstructed”. 

c.  “The Presiding Judge declined to take action or permit the filing of a formal complaint and refused to allow L to testify”.  

d.  That due to police intervention, the abuse has ceased.

e.  “L prevented by presiding judge from testifying despite repeated request by F and L himself, suppresses valuable evidence refuting the mother’s exposed false sown testimony”.

108.F has made some very serious allegations, he wraps up this section of his submission with:

“If HK Family Court continues to ignore, obstruct, or cover up evidence of child neglect, abuse or professional misconduct, Father will refer all evidence to the relevant authorities in HK, US and Globally for investigation and protection of [P] who is in clear and present danger once the father, FDH (presumably foreign domestic helper) and L all leave HK.”

109.To these latter allegations, the following is my position:

a.  Various reports have indicated to me that L has been influenced by F.  F has involved him substantially in these proceedings, and L often echoes F’s criticism of M and the situation.

b.  Allowing L to give evidence in these hearing would only serve to heighten the tension between the parties, and exacerbate the already fragile relationship between L and his mother.

c.  Despite a number of police reports made by F, the police has not seen fit to convene a multi-discipline case conference on child abuse.

d.  None of the 11 reports submitted to this Court over the past 4 years have revealed any risk of potential harm to P at all, except for the on-going effect of these legal proceedings and the parties’ animosities against each other.

e.  The call to meet with a child remains a discretion of this court.  The issues that F alleges that L needs to speak to me about, I am able to discern from the reports and the parties’ evidence.  I do not see the need to meet with L personally, particularly in the light of the above observations.  

110.From the F’s submission, he appears to live in his own reality, treating his own case as undisputed facts.  He complains that M has been “flogging and recycling false findings/judgments already disproven by evidence …” and that “prior judgments made on false or incomplete evidence now disproven and served upon court and parties”.  Again, F provides no reference.  There have only been the written judgments abovementioned, if F has so many grievances about these decisions, he should have appealed against these decisions, instead of now claiming that there were false findings based on incomplete evidence.  There was also no cross examination in this regard.  His argument on this is not accepted.

M’s alienation

111.F says that M has alienated P from himself and his brother by blocking his access to the US.

112.The issue of alienation is not before me in this trial. 

113.The reports have repeatedly stated how P loves F and L, and access has been open with no obstructions on M’s part; on this alone, I am highly unlikely to find that P has been alienated from F by M.

114.I also turn to the observations made in the 3^rd Psychologist Report dated 5 September 2023:

9.1.2 P can consistently express that he felt annoyed and pressurized by the father and L's negative comments about his schooling, his living condition and their negative comments on the mother. At the same time, P holds a positive view about himself (e.g., good self-confidence, like challenges provided, positive feelings towards peers and his future) and the mother (e.g., mother always supported him when he was in need), a balanced view towards his father (e.g., positive feeling towards father for having fun with him and willing to follow his guidance and instructions) and towards L (enjoying both the time for fun together and separate time with L, holding hope that both L and he will have bright future even they may receive different education opportunity). To emphasize, I do not see that P has adopted an all or none rejecting attitude towards his father or L, not manifesting a typical sign or behaviour of an alienated child.

9.1.3 As said, P can consistently express that his pressure and his distress in facing the father and L's repetitive and negative comments about his schooling, his living condition and their negative comments on the mother. He named these as 'bullying'. He quite often needs his mother to get him back from the father's place when he really felt pressurized and insecure. As he said, he learnt to cope with this situation by ignoring their sayings, distracting himself to other activities, and trying to control himself. As observed, I agreed that he is trying to protect himself by upholding his views and feelings in facing his father and L. On the other hand, his descriptions about his resistance, the pressure and insecurity in relating with the father under such high-conflict divorced family are more consistent with his actual experiences in relating with the father and L, rather than he has been brainwashed or alienated by the mother. (§9.1.2-3)

115.On the contrary, looking at L’s reaction to his mother, and the various reports, the issue of whether F has alienated L against M remains an open one, but I do not intend to make any finding on this issue in the current case.  

Holistic assessment of what is in P’s best interest

116.Having seized of this case since mid-2022, I came on board to the already then established arrangement of the split care and control order made by HHJ Melloy in August 2021.

117.P has been in M’s care since August 2021, such is the status quo up to the time of the hearing, and has continued after F left Hong Kong in around August 2025.

118.In consideration of this case, one of the most important considerations I have is P’s emotional needs.  In the above analysis, there has been overwhelming evidence recounting the ways that F is oblivious to P’s needs, and does not have the capacity to hear contradictory views, nor room for negotiation; F would react if P does not say things he wants to hear, he is unaware of the things he keeps on criticising (of M and his school etc) are not things that P wants to hear.  F is insensitive to P’s emotions; his behaviour ends up silencing P who feels that he is unable to say what is really in his heart when he is with F or L. 

F’s lack of sensitivity to P and respective parenting capacity

119.Contrary to the F’s case, I found that he is not at all sensitive to P’s emotions, and tends to ignore and brush aside P’s wishes when it contradicts his own.  F appears to lack the ability to appreciate that P can have a view that does not accord with him, F has put his own preference before the needs of his son P, and he has ignored P’s attempt at communication.

120.The various reports, dating back to the first psychologist report in August 2021, have the following to say:

From the 1st Psychologist Report: 2 August 2021

Father’s parenting capacity

Currently, his parenting capacity is significantly hindered by his preoccupation to attack the mother. It is uncertain if this is related to his own unresolved anger (towards the mother); as he is L's idol it is only natural for L to take revenge of his mother by attacking her.  The father showed little insight in how his parenting style affects his children negatively and he does not easily accept influence. Hence, it is uncertain if he is willing to change and improve his parenting. (§9.2.2)

From the 2nd Psychologist Report dated 8 August 2022

When P was given a chance to state his feelings about wanting to stay in HK and prefer to see M frequently:  

… Father looked a bit uptight and serious, saying that there would be no money for them to stay in Hong Kong and their life and career would be over and horrible that they would end up living in poverty and studying in local public school. … This time, father allowed some time to P to answer but father was not satisfied with P's answers. He then pushed P to think of the reality (living in Hong Kong in poverty) and wanted him to make comparison such that L would have good development and achievement in USA while P would just lag behind. Father then asked P whether he would miss him or L if he was left in Hong Kong. P said yes but he did not want to go the USA without mom. Father became more pushy and said to P that if he stayed with mother, he could not meet him and L and would it that ok to him. P kept silent and looked at me. Then I stopped the father a while and said to the father that it would be a very tough question for P to make a choice. Father seemed to agree on this and repeated his stand that he always thought of the best interest of his children and P still had not yet experienced the reality.

As noted in the above conversation, father became tense, pushy and gave pressure to P when P clearly indicated his wish and need for the mother. Father also made comparison between L and P's development and the differential treatment, which will also induce unnecessary burden and guilty feeling to L. (§6.7.5-6) 

I understood that father would be upset of hearing P's feeling towards relocation but I sincerely hoped that the father has to seriously to take care P's emotional needs and be sensitive to his needs. I perceived that P graved for enormous reassurance, comfort and acceptance to help him to face the uncertainty to the future (particularly when he wanted to have mom and he cared about his mother's needs very much) rather than just having the need to understand the cruel reality of his financial crisis. (§7.4.4)

From the 4^th Psychologist Report dated 12 May 2025

When talked about studying in US, P firmly stated that he did not want to move to the US, although he acknowledged he would miss his father and L if they left Hong Kong. Father struggled to convince him of the benefits of relocating. P reiterated that he did not want to leave his mother, despite father's reassurances that she could accompany him to the US. This led to a argument between father and son. I intervened and invited them to the playroom for play session. §69

… L took the initiative by showing a mental map and calculating mother-son contact, ensuring that mother could stay in nearby accommodation arranged by their father and remain accessible to them. However, P became visibly upset, tearing the paper and vehemently opposing the idea of moving to the US. He insisted on staying with their mother, his emotions escalating as he felt his father disregarded his feelings. In a burst of frustration, P kicked his father and removed his shoes.  Despite father's attempts to soothe him, P's outburst persisted. Eventually, father and L left the office, leaving P behind to calm down while he awaited his mother. Before departing, father hugged and kissed P, but P remained unyielding, still consumed by emotion. When mother came to pick up P from my office, she noticed him crying and promptly comforted him with a gentle hug. P felt annoyed by his dad's and L's persistent attempts to persuade him, explaining that he tried to distract himself from their repeated suggestions. However, he found it difficult to escape from their pressure. §72

… While P enjoyed playful moments with his father, he exhibited frustration when his father disapproved of his current school, ignored his feelings and insisted on their views jointly on relocation, leading to arguments and emotional outburst. These interactions highlighted the differing perspectives on future plans and a strained aspect of their relationship. §73

In the post observation discussion of the latest PR:

74. After the observation sessions, both parents, L and P, were interviewed individually to discuss their feelings about the observation sessions.

75. L believed that P’s emotional outburst during the joint observation were related to his anticipation that father and him was leaving for the US. He insisted that P was misrepresenting their relationship as they had previously enjoyed a good bond. L mentioned that P had apologized and even offered to give his father a massage the day after the observation sessions. He shared pictures of their joyful gatherings the day following the observations. L shared that P told him that he wanted to go to US with them, but was reluctant to share this directly with me, fearing that it would be documented in a report and read by mother.

76. P expressed feeling pressured by both father and L on the relocation issue. He repeatedly stated his preference to stay in Hong Kong with his mother, but felt that father and L were consistently persuading him to consider relocating. This pressure left him feeling annoyed and irritable, leading him to his emotional outburst as an attempt to push them away and halt the discussion. P felt that neither his father nor L listened to his views and feelings, despite his attempts to explain them. I shared with him father and L's speculation about his emotional outburst. He appeared angry and reiterated clearly that he genuinely did not want to relocate to the US. P added that he was preparing himself for the leaving of father and L, not viewing it as abandonment.

77. Father echoed L's view, believing that P was distressed by the pressure from mother. He intentionally misrepresented the father-son and sibling relationship which used to be harmonious and good. He maintained that P truly wanted to go to the US. but was being pressured by his mother and dared not to reveal his genuine views. His emotional outburst might stem from his fear of being left alone at home as father and L would be leaving Hong Kong, highlighting their close bond.

78. Mother expressed her concerns after observing P's negative emotions following the joint session with father and L. She recognized that he felt significant pressure whenever discussions about the relocation plan arose with L and his father. They persistently urged him to consider the benefits of moving to the US. He became reactive and emotional when they argued. She hoped to be available to him and sooth him during the hard time. (§§74-78)

121.In F’s closing, I also noticed how he has misread P’s “genuine excitement at the prospect of attending [a school] in the USA”, relying on transcript of the interview of L and P from the School; however in the Whatsapp messages between M and P, P has said that it was F who made him go through the interview.

122.Under cross examination, the SWO says this:

“… My concern was that like the father couldn’t positively respond to some of the emotional needs of P.  And then for P’s age, for his growth, it’s very vital for him to have the response from a parent regarding that.”

123.It is clear from the above evidence that F is completely unaware and insensitive to P’s needs or his attempt at communicating his wishes.  F is  focused on imposing what he wants or thinks is right on P, insists on interpreting matters to what he chooses to see, and has difficulty accepting contradicting views.  F has failed to address these emotions from P in any of his submission, instead saying that P has been coerced in his choice of staying in HK. 

124.On the other hand, M has been an important source of comfort, stability, and safe harbour for P; P has expressed grave concerns if M is not in close proximity were he to deal with F and L:

From the 4th Psychologist Report dated 12 May 2025

He felt overwhelmed by the prospect of constant arguing and potential bullying by his father and L without mother being physically and emotionally available to him. (§53)  

He stated that he had strong bond with mother and they needed mutual support. Even in Hong Kong, he found it hard to voice out his needs, which was not heard and acknowledged by father and L. He worried that he would not be able handle the bullying from father and L if mother was not available to him. (§89)

P chooses to be with her, despite fully aware that he is giving up the accommodation and school offered by F in the US. 

125.The last two reports also demonstrate the closeness of relationship between M and P:

From the 7^th SIR dated 7 May 2025

13. As observed during the interactive session, the mother maintained a natural and closed interaction with P. She maintained being affectionate, caring with frequent communication, both body and verbal with P while P also yearned for the mother's body interaction and closeness by leaning closely to his mother. The mother-child communication also showed their respect and appropriate boundary.

…

22. He also assured the Investigation Officer that he lived happily now with his mother, who was caring and always support him to face any challenges or sadness, whereas his father was not ready or even fail to address his emotions.

…

32. On the other hand, the mother was observed to be attentive and patient to meet P's daily care and emotional needs as well the way to give proper guidance as indicated from their close and intimate relationship.

And from the 4^th Psychologist Report dated 12 May 2025

51. When the family relationship was further discussed with him, P expressed his love for his mother, highlighting his need for her constant, love and support. He described her as nurturing and kind, stating that he was emotionally attached to her. (§51)

…

82. Mother adopted a gentle, child-centered and caring approach, respecting her children's wishes, encouraging them to express themselves and emotionally attuning to their needs. Her patience and calmness are evident, especially in response to L's challenging behaviors. She has been the source of emotional security to P. (§82)

…

91. … P, meanwhile, has a strong attachment to mother and clearly stated that his need for mother's care and support, and he preferred to stay in Hong Kong with mother. (§91)

126.Under cross examination by F, the CP reaffirms her findings, she says that when P is living with his mom, he feels satisfied and well taken care of:

I think in P’s case, the important thing is that for a long time, the mom has been providing emotional security for him as a foundation.  So I think in terms of psychology, this is important.

127.When the SWO was cross-examined by F, she says that she upholds her recommendation, and summarized the approach impeccably:

“… So the best interest of the child is assessed based on the care of the child, the wishes of the child and also the emotion of the child, also the emotional security of the child.”

“… I have to assess the child’s interests regarding relocation and also the compatibility between the parent who will move with the child”

128.I take the view that P will need time to find his footing with some stability in his life after this long saga of litigation which has taken place over one third of his young life.  With time, he will need to learn to protect and stand up for himself in the face of his father’s and brother’s strong personalities and conduct.

129.I have taken into account P’s education situation, which has now been arranged such that he is in an English-speaking school, and schools fees have been provided for.  I also recall F’s sister saying that provision for schools should at least be two years from the time of hearing, this will cover school years from 2025 to 2027.  If F properly pays for maintenance as ordered by this Court, P’s education will be funded going forwarded.

130.I have considered the issue of P’s separation from F and L which has been dealt with above.

131.It is my finding that, in considering all the reports from the SWO and the CP, M’s care poses no risk at all to P.  The SWO’s oral evidence cites that there is no issue to the Children’s safety when with their mother.  I am of the view that the findings in the reports are sound, and the oral evidence of the CP and the SWO credible.

132.While acknowledging that F’s proposal sounds attractive with big house with swimming pool, pristine school grounds, and presence of himself, L and extended family; part of what he offers are only hardware.  On the other hand, I recognize that P’s life without his mother on a daily basis would be unbearable to him.  

133.I am also of the view that F’s proposal to M is unpalatable, indeed this had not been accepted by M, and she repeats this in her oral evidence.  M has informed the Court that she now has a US visa after an unusually long questioning time from the US embassy in HK.  Referring back to my First Relocation Judgment, this does not give her unconditional or incontrovertible entry into the US.  Her ability to enter or stay in the US remains tenuous.

134.After undertaking the requisite balancing exercise, I have come to the view that it is in P’s best interest that his status quo be maintained, and he remains in his mother’s care in Hong Kong.

Sole v Joint Custody

135.This was the subject matter of a trial which took place from 30 October to 6 November, 2023; as said above, I have consolidated that case  into this relocation application.

136.F asks for joint custody while M asks for sole custody of P.

137.The SIR recommends joint custody of P to be granted to both parties.

138.While a Court would always consider the recommendation made in a social investigation report, the final decision is always within the discretion of the court. The status of a “recommendation” of the SWO cannot be elevated to a “decision” of the Court. On this I make reference to the following principle set forth in the case of Naziya Aslam v Ali (Custody and Removal) [2009] HKFLR 294:

“27.  It is important, however, that the status of a recommendation in a report from a Social Welfare officer is not raised to the status of a decision which should only be interfered with on grounds similar to an appellate court interfering with an exercise of discretion.  The references to the cases referred to are instructive in this regard.  Wood J in the case of Stephenson v Stephenson pointed out, at pages 1145-1146, that the role of the welfare officer was to assist the court by informing the court of factors which the court would otherwise not know.  He went on to say that the officers usually conclude their reports with a summary of the factors for and against each course which it is open to the court to take.  He then said “… in some cases, he or she may feel sufficiently strongly about a case to make a positive recommendation - indeed, on those occasions when they give oral evidence the court sometimes asks for the view of the welfare officer.

28.  I would agree with Wood J, that the welfare officer’s position to make a recommendation should arise when the circumstances of the case are particularly clear.  The welfare officer should not make a recommendation as a matter of course and should certainly not do so where it is a question of a balancing the relative merits of one course or another, unless specifically invited to do so by the court.  The exercise of the judge’s discretion should not be trespassed upon.  In any event, it seems to me that the correct approach to a recommendation made by a welfare officer is set out in the judgment of the Court of Appeal in Re V (residence: review) [1996] 3 FCR 101 at p.110F:

‘In a judgment were a Judge gives reasons for his decision and those reasons demonstrate that his decision is not manifestly wrong he is not under any further duty to spell out his reasons for departing from the court welfare officer’s report.  In this situation the Judge’s reasons for reaching his own decision are normally the very reasons for his declining to follow the court welfare officer’s recommendation.’ ”

139.As said above, I acknowledge and accept the findings of the SWO with all the contents of the interviews and observation of the parties and the Children, but I am unable to accept this particular aspect of her recommendation for the following reasons.

140.M’s case of sole custody stems from difficulty in discussing matters with F.  Particular case in point involved the issue of schooling of the Children.  F has said that for lack of funds he could not afford to pay for the Children’s education in their previous school.  F then insisted that L should take online course which has a US curriculum, this is against the laws in HK and F is well aware as I have sought SIR on this issue and the SWO has spoken to him.  M was forced to come to Court seeking leave to enrol both Children into local schools.  This was given, but F did not comply with the Court Order and kept L on online courses; while P had no choice but to attend local school which F criticized vehemently. Subsequent, without discussion with M, F decided he then had the financial resources to send L to an international school in HK but he did not offer the same opportunity to P, while continuing to speak ill of P’s local school.  The reports also show that online courses have its limitation including much less education hours, L’s course hours took place in the small hours of the morning, and there is an obvious lack of social interaction with fellow students which is important for personal growth; F only spoke to how well L was performing on the online courses, and fail to see that the abovementioned factors could have a negative effect on L.  In my view, other than the obvious non-compliance with a Court Order, F’s conduct has failed to take into account what was in the Children’s best interests, and also ignored how P might felt when L could attend an international school and he could not.  These were never addressed by F in any way. 

141.Co-parenting is also an issue when H is not able to comprehend the extent to which he has involved and influenced L in his relationship with M.  It is foreseeable that arguments will continue to ensue as F remains self-centred and always consider his point of view to be correct and beyond reproach.

142.I am also mindful that F’s belittling attitude of M (having less education than his university degree) will make it difficult for them to see eye to eye on matters.

143.Turning to the leading case in the subject matter, I quote from F’s PD v KWW (Child: Joint Custody) [2010] 4 HKLRD 191 per Hartmann J (as he then was) at paragraph 57:

At all times, of course, the welfare of the child remains the first and paramount consideration.  As this Court has recognised (see, for example, Y v P [2009] HKFLR 308), there may be occasions when the ability of the parents to reach any rational accord in respect of important matters concerning the upbringing of their child is so deeply undermined that to compel attempts at co-operation will not protect the interests of the child but only leave the child more vulnerable.”

144.Despite F’s ongoing failure to pay maintenance and for schooling, he had:

a.  Criticised M for not providing sufficient food to P;

b.  Criticised M for enrolling P into a local school where P had to struggle with the Chinese language class; and

c.  Criticised M has “unvetted” male friends who gave her money (not proven).

I am of the view that “rational accord” would be difficult to achieve.

145.I have also given thought to the fact that the parties live more than 12 hours apart, sometimes decisions involving children maybe time critical, and M should be able to make quick and important decision for P without launching into a prolonged discussion with F.  That said, M should be conscious as a parent granted sole custody, the law requires that she informs F of a decision (of a custodial nature) to be made and for them to have a discussion over the issue, and it is only with disagreement that M here will have the final say on the matter. 

146.Based on the discussion above, I shall make an Order that sole custody of P be granted to M.

Care and Control

147.As I am dismissing F’s relocation application, P’s care and control shall be with M.

Access

148.I turn to look at M’s proposal with regard to access (paragraph 36 above).  I accept her proposed access arrangement.

149.M’s counsel has submitted that there is a risk of abduction by F.  To reword this, I think the concern is if F were to have access to P in the US, that he might not be able to return to HK if M is not with him, and the latter condition is uncertain.  It would be completely within F’s ability to prevent P from leaving the US, and M would face a lot of hurdles to bring P back to HK, in particular, financial.

150.It must be recognized that P was born and raised in HK and that HK is his habitual residence in fact and in law.  If access will one day in future be conceded to take place in the US, M should consider taking out a Mirror Order to preserve the status quo and protect P’s interests.

151.Having regard to the above analysis, the relationship between F and between the siblings, the way that F, and sometimes also L, exert emotional abuse and pressure on P and ignorant of the impact, I take the view that on a balance of probabilities, that there is validity to her concerns.

152.F has argued that he does not have the financial resources to carry on access in HK, taking into regard the travel funds he proposes, and the supported he has from his family; this argument is not accepted.

153.I therefore agree that F’s access to P shall be in Hong Kong, or at such other locations and on such conditions to be agreed with M.

Safeguards?

154.F says if P were to stay in HK, there should be safeguards in the form of monthly welfare monitoring, I am not of the view that there needs to be SWD’s monitoring in this case, reports can be called in the future if need arises. 

155.F asks for “automatic trial relocation trigger”, there is no legal framework for this arrangement.  Relocation of a child would always require evidence and consideration by the Court of the circumstances and factual matrix at the relevant point of time.

Costs

156.For this relocation application, I shall defer to the usual Orders to be made with regard to children, the consequential Order is therefore that there shall be no Order as to Costs.  

Order

157.I shall make the following Orders:

a.  That F’s application for permanent removal of P to the US be dismissed.

b.  Sole Custody of P be granted to M.

c.  Care and control of P to M.

d.  F’s access to P as follows:

i.  Remote access: unrestricted telephone and video call access.

ii.  School holidays: provided F gives 4 weeks prior notice of his intention to undertake any holiday access, he shall have access with P for half of the winter holiday and up to 4 weeks of summer holiday each year.

iii.  Term time: in the event that F visits Hong Kong during term time and provided he gives M at least 4 weeks of prior notice of any intended trip, he may have reasonable daytime and / or staying access with P in HK during such trips.

iv.  School holiday and term time access shall take place in HK unless otherwise agreed by M and F in writing.

e.  No Order as to Costs, including all costs reserved, with legal aid taxation and certificate for counsel.  This to be a Costs Order nisi to be made absolute within 21 days hereof.

Petitioner represented by Mr Shaphan Marwah instructed by Boase Cohen & Collins

Respondent acting in person