Yy v. Choa

FCMC 7598 / 2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 7598 OF 2010

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BETWEEN

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Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)

Dates of Hearing: 26 and 27 October 2011

Date of written closing submissions: 4 November 2011

Date of Judgment: 9 November 2011

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J U D G M E N T
(Removal)

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Introduction

1.  This is an application by a petitioner mother for leave to remove the two children of the family out of the jurisdiction of Hong Kong in order to permanently relocate with them to Shanghai in the PRC. The mother, who is from Beijing originally, wishes to join her partner who has recently relocated to Shanghai for work reasons. The father opposes the mother’s application and asks that the children, who are 8 and 7 years old respectively, remain in Hong Kong.  

2.  All relocation cases are difficult and this case is no exception. The one overriding issue here and the one that colours all other aspects of the case is the fact that the parties are in a very tight financial predicament. In part this appears to be why the wife and her new partner have looked at the other opportunities available to them, which will ensure that the children are educated in a manner commensurate to their educational experience to date. Although the father acknowledges the financial problems he does not agree that relocation is necessarily the only or even the most viable solution available to the parties.

3.  The mother proposes that the children live with her and her new partner in an apartment in Shanghai and that they attend an international school there. Her partner will be teaching at this school and his contract of employment seemingly provides for a number of significant benefits which should, on the face of it, be available for her and the children.

4.  The alternative proposal put forward by the father is that the children remain in Hong Kong and that they live with him and his new partner, who will effectively care for the children while he is at work. He proposes that they attend either an ESF school or a local school. He did not appear to have given any serious thought to a third scenario, namely one where the mother remains in Hong Kong with the children and he is asked to financially support them – at least in part.

5.  I am therefore tasked with balancing the different options one against the other and deciding ultimately what is in the best interests of these particular children at this particular point in time, given the prevailing circumstances.

The main issues

Should permission be given for the children to leave Hong Kong in order to relocate to Shanghai with their Mother?

In the event that permission is given should there be any alteration to the existing access arrangements?

Background

6.  The parties married in June 2001 in Hong Kong when the mother was only 19 years of age and the father 17 years her senior. They are now aged 29 and 46 years old respectively. The mother is from Beijing and the father is from Hong Kong. The father is also a Canadian passport holder and the mother obtained a Canadian passport by virtue of their marriage. The parties both speak good English and the children’s mother tongue is also English. The children apparently speak English at home and have until recently attended a prestigious International school in Hong Kong where the mode of instruction is also English. Mandarin is their second language. The children are now aged 8 and 7 years old respectively, the elder child R, a son, was born in December 2002 and the younger child V, a girl was born in February 2004. The children were both born in Canada and hold Canadian passports, but have spent most of their life to date in Hong Kong.

7.  Unfortunately the marriage does not appear to have been a particularly happy one and in May 2010 the parties separated amid accusations of infidelity on the part of the father and insufficient financial support. It seems that the parties’ financial situation has always been a cause of some concern both during the marriage and since, with money often being in short supply. The mother maintained during the trial that she was unaware of the parties’ financial predicament during the marriage – something that the father has challenged. Whether the mother was aware of it or not the fact remains that the parties’ financial circumstances both then and now have been very tight. 

8.  Notwithstanding that it seems that both parties were keen to ensure that the children received the best education possible and it was therefore agreed between them that the children would attend a prestigious and expensive international school in Hong Kong. In retrospect given what we now know about the parties’ finances it is hard to see how that could ever have been maintained longer term. The children are presently being home schooled pending the outcome of this application.   

9.  Both parties have since formed new relationships, the mother with an older gentleman, Mr J who she met whilst working as a teaching assistant at the children’s school and the father with his domestic helper, Ms S.

10.  Mr J, who is a teacher by profession, has recently started work at an international school in Shanghai and the mother wishes to join him there with the children. They intend to marry. He previously worked as a Technology Facilitator in the children’s former school in Hong Kong. He maintains that this position was made untenable by the father, something that is denied. In any event Mr J’s contract was not renewed in Hong Kong and consequently he had no alternative but to look at other options.

11.  The father wishes the children to remain in Hong Kong. Although no application has been made for a change in the care and control arrangements, his opposition to the mother’s plan was apparently made on the assumption that the children would live with him and Ms S in Hong Kong.

12.  The mother was clear in the witness box that if her application was refused that she would remain in Hong Kong with the children. She would oppose any application to vary care and control. Given that no application has been made in any event I am approaching this application primarily on the premise that if the application were refused that the mother would do as she says and remain with the children in Hong Kong. It is interesting to note that this is not a point that seems to have been taken fully on board by the father. His case was argued on the premise that if the application was refused then the mother would leave Hong Kong and that the children would remain with him and his new partner in the territory. He has continued to largely argue his case on that premise in his closing, notwithstanding the mother’s evidence to the contrary.    

13.  By virtue of a court order dated the 10 February 2011 the parties presently have joint custody of the children, with care and control to the mother and defined access to the father to include:

(a)   Access on alternative Saturday and Sunday each week commencing on Saturday 12^th February 2011, the children to be dropped off by the Petitioner’s domestic helper at the podium of the estate at 9:00 a.m. and picked up by her at 7:30 p.m.;

(b)  Staying access for 50% of all the long school holidays to include midterm school breaks;

(c)   Access on alternate single public holidays commencing on the 2^nd May 2011;

(d)  Daily telephone access between either 6:00 p.m. – 6:30 p.m. or 7:00 p.m .– 7:30 p.m.

Discussion

14.  I must now turn to consider the issues, the law and the parties evidence as set out in their affidavits and as given orally by them during the hearing.  I also heard evidence from the mother’s fiancée Mr J and the father’s fiancée Ms S, together with the social welfare officer Ms C H-W.

The Law

15.  I think it would be fair to say that relocation is currently a very hot topic within international family law circles. Ms Frances Judd QC put it thus in a jointly presented paper with Dr Robert George at the International Family Law Conference in London in September 2011 entitled Be Careful What You Wish For: Relocation Without Payne

1.  To family lawyers, it has seemed that the principles in Payne v Payne (following as they did, a long line of authority from the case of Poel v Poel) have been clinging on for dear life in the face of criticism from all quarters, both at home and abroad.  Articles in the media, the 2009 study commissioned by Reunite, the Washington Declaration of March 2010, comments by Judges both at first instance and on appeal, have all combined to give the impression that before long, the issue of relocation would be the subject of a major revision in this country.

2.  No case has yet gone to the Supreme Court – which suggests that the right case on the facts has not presented itself, or (more likely) that the powers that be in the Supreme Court have not seen any particular need for the law to be revisited.  At least four relocation cases were refused leave to appeal to the House of Lords after Payne, but we do not know (yet) of any case where permission to appeal to the Supreme Court has been sought.

3.  Whilst we have been waiting for a single event or case which turns Payne upon its head, what has actually happened is more subtle.  There have been a number of cases (both reported and otherwise) where judges have felt emboldened to refuse applications to relocate, but by working within the Payne guidelines.

16.  She then went onto discuss a number of cases leading to the most recent decision to be handed down by the Court of Appeal in England on this topic namely MK v CK [2011] EWCA Civ 793, 7 July 2011. A full discussion of the case is probably not necessary in this judgment given that it was very largely concerned with an application to relocate where there was a genuine shared care arrangement. That is not the situation here.

17.  In Hong Kong we have similarly followed the guidance provided by the English authorities and in particular both Poel v Poel [1970] and Payne v Payne [2001] 1 FLR 1053. This was recently confirmed by the Court of Appeal in Hong Kong namely SMM v TWM CACV 209 of 2009. The father subsequently in that case sought leave to appeal to the Court of Final Appeal. His application was refused.

18.  Mr Surman, Counsel for the mother, has suggested an alternative approach following MK v CK, which assesses both the practical and emotional aspects of a case. Although interesting it seems to me that in a case such as this, it is important to continue to follow the guidance provided by Payne, pending further clarification either by the Supreme Court in England and Wales or our own Court of Appeal/Court of Final Appeal.

19.  Consequently it might be helpful to repeat the actual and most often quoted passage from Lord Justice Thorpe who said in Payne as follows:

(40). … To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother’s proposals are necessarily compatible with the child’s welfare I would suggest the following discipline as a prelude to conclusion:

i.  Pose the question: 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, by which I mean, 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 insofar as appropriate.

In suggesting such a discipline I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological well being of the primary carer. In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor.”

The President, Dame Elizabeth Butler-Sloss, also added the following helpful summary:

(85) In summary I would suggest that the following considerations should be in the forefront of the mind of a judge trying one of these difficult cases.   They are not and could not be exclusive of the other important matters which arise in the individual case to be decided.   All the relevant factors need to be considered, including the points I make below, so far as they are relevant, and weighed in the balance.   The points I make are obvious but in view of the arguments presented to us in this case, it may be worthwhile to repeat them.

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

(b)  There is no presumption created by section 13(1)(b) in favour of the applicant parent.

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

(d)  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.

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

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

(g)  The opportunity for continuing contact between the child and the parent left behind may be very significant.

(86) All the above observations have been made on the premise that the question of residence is not a live issue. If, however, there is a real dispute as to which parent should be granted a residence order, and the decision as to which parent is the more suitable is finely balanced, the future plans of each parent for the child are clearly relevant. If one parent intends to set up home in another country and remove the child from school, surroundings and the other parent and his family, it may in some cases be an important factor to weigh in the balance.  But in a case where the decision as to residence is clear as the judge in this case clearly thought it was, the plans for removal from the jurisdiction would not be likely to be significant in the decision over residence. The mother in this case already had a residence order and the judge’s decision on residence was not an issue before this court.

20.  In reality, as case law has developed in England and Wales, the emphasis has been on the guidance provided by Lord Justice Thorpe as opposed to that provided by Dame Butler-Sloss. This tendency has been followed in Hong Kong.

21.  The other point worth highlighting, given Hong Kong’s large expatriate community, is set out in F v H (Children: relocation) [2008] 2FLR 1667 where it was held that

(1)  The bar as to practicalities to be jumped by a relocation applicant was set at a wide variety of heights depending on the facts and circumstances of the case.  In this commonplace category of cross-border family creation in which the primary carer was returning to a completely familiar environment the bar was set considerably lower than in the case of an applicant who in pursuit of some dream or ambition was proposing to take the children to an unknown and untried environment.  The bar was set particularly low if the primary carer was returning, as in this case, to a completely familiar home after a brief absence

22.  In many expatriate cases therefore, SMM v TWM being a case in point, it would seem likely that the bar would most probably be set at a low level. In this case, although the mother is seeking to return to the country of her birth, she is also seeking leave to reside in Shanghai as opposed to Beijing. I accept that she does not have family in Shanghai or a very well developed social network. Nevertheless she is still seeking to return to her home country, which will, almost by definition, be very familiar to her.     

23.  Referring back to MK v CK [2011] EWCA Civ 793, what is of very real interest is the following observations made by Lord Justice Moore-Bick  

85.  Finally, it is necessary to refer briefly to the decision of this court in Re W (Children) [2011] EWCA Civ 345, in which Sir Nicholas Wall P. re-emphasised that in relocation cases judges must apply the criteria and guidance set out in Payne v Payne. Elias and Lloyd L.JJ. agreed, but it is interesting to see a note of caution appearing in the comment of Elias L.J. that “Payne is binding, to the extent at least that guiding principles can be said to bind a court.”

86.  I accept, of course, that the decision in Payne v Payne is binding on this court, as it is on all courts apart from the Supreme Court, but it is binding in the true sense only for its ratio decidendi.  Nonetheless, I would also accept that where this court gives guidance on the proper approach to take in resolving any particular kind of dispute, judges at all levels must pay heed to that guidance and depart from it only after careful deliberation and when it is clear that the particular circumstances of the case require them to do so in order to give effect to fundamental principles.  I am conscious that any views I express on this subject will be seen as coming from one who has little familiarity with family law and practice.  Nonetheless, having considered Payne v Payne itself and the authorities in which it has been discussed, I cannot help thinking that the controversy which now surrounds it is the result of a failure to distinguish clearly between legal principle and guidance.  In my view Wilson L.J. was, with respect, quite right to warn against endorsing a parody of the decision.  As I read it, the only principle of law enunciated in Payne v Payne is that the welfare of the child is paramount; all the rest is guidance.  Such difficulty as has arisen is the result of treating that guidance as if it contained principles of law from which no departure is permitted.  Guidance of the kind provided in Payne v Payne is, of course, very valuable both in ensuring that judges identify what are likely to be the most important factors to be taken into account and the weight that should generally be attached to them.  It also plays a valuable role in promoting consistency in decision-making.  However, the circumstances in which these difficult decisions have to be made vary infinitely and the judge in each case must be free to weigh up the individual factors and make whatever decision he or she considers to be in the best interests of the child.  As Hedley J said in Re Y, the welfare of the child overbears all other considerations, however powerful and reasonable they may be.  I do not think that the court in Payne v Payne intended to suggest otherwise.

24.  With respect I agree. To reiterate the one and only legal principle that I need be concerned with is that the welfare of these two young children is the court’s paramount concern. I will though largely rely on the guidance provided by Payne in coming to that decision.

25.  In doing so I am also mindful of the very helpful analysis added by Lady Justice Black:

140.  Looking back over what is now nearly 40 years of jurisprudence in this area of family law, I have come to a number of conclusions.  I am indebted to my Lord, Moore-Bick LJ for his judgment which, like that of Thorpe LJ, I have read in draft, and in particular for its analysis in paragraph 85 of the approach to be taken to Payne in the light of the conventional treatment of principle and guidance.

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.

142.  Whilst this is the only truly inescapable principle in the jurisprudence, that does not mean that everything else – the valuable guidance – can be ignored.  It must be heeded for all the reasons that Moore-Bick LJ gives but as guidance not as rigid principle or so as to dictate a particular outcome in a sphere of law where the facts of individual cases are so infinitely variable.

143.  Furthermore, the effect of the guidance must not be overstated.  Even where the case concerns a true primary carer, there is no presumption that the reasonable relocation plans of that carer will be facilitated unless there is some compelling reason to the contrary, nor any similar presumption however it may be expressed.  Thorpe LJ said so in terms in Payne and it is not appropriate, therefore, to isolate other sentences from his judgment, such as the final sentence of paragraph 26 (“Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children”) for re-elevation to a status akin to that of a determinative presumption.  It is doubly inappropriate when one bears in mind that the judgments in Payne must be read as a whole, with proper weight given to what the then President said.  She said that she wished to reformulate the principles since they may have been expressed from time to time in too rigid terms with the word ‘presumption’ over-emphasising one element of the approach (paragraph 82) whereas the criteria in s 1 Children Act govern the application (paragraph 83) and there is no presumption in favour of the applicant (paragraph 84).  Dame Elizabeth referred, of course, to the effect on the parent with residence (paragraphs 83 and 84) but she also stressed that the relationship with the other parent is highly relevant and that there are many other factors which may arise in an individual case (paragraph 84).  I detect in her discussion of the factors and in her summary at paragraph 85 no weighting in favour of any particular factor.  She said that the reasonable proposals of the parent with a residence order wishing to live abroad carry “great weight” whereas the effect on the child of denying contact with the other parent is “very important” but I do not infer from that phraseology any loading in favour of the reasonable proposals as opposed to the effect of the loss of contact.

144.  Payne therefore 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.  I do not see Hedley J’s decision in Re Y as representative of a different line of authority from Payne, applicable where the child’s care is shared between the parents as opposed to undertaken by one primary carer; I see it as a decision within the framework of which Payne is part.  It exemplifies how the weight attached to the relevant factors alters depending upon the facts of the case.

145.  Accordingly, I would not expect to find cases bogged down with arguments as to whether the time spent with each of the parents or other aspects of the care arrangements are such as to make the case “a Payne case” or “a Re Y case”, nor would I expect preliminary skirmishes over the label to be applied to the child’s arrangements with a view to a parent having a shared residence order in his or her armoury for deployment in the event of a relocation application.  The ways in which parents provide for the care of their children are, and should be, infinitely varied.  In the best of cases they are flexible and responsive to the needs of the children over time.  When a relocation application falls to be determined, all of the facts need to be considered.

26.  I would reiterate the sentiment expressed in those sections whole heartedly – especially paragraphs 144 and 145.

Should permission be given for the children to leave Hong Kong in order to relocate to the Shanghai with their mother?

27.  In referring to the Payne guidelines I intend to concentrate first on the step by step approach outlined by Thorpe LJ from paragraph 40 set out above.

Is the mother’s case genuine in the sense that it is not motivated by some selfish desire to exclude the father from the children’s life?

28.  The mother wishes to relocate to Shanghai with her fiancée. There is no sense that in doing so that she wishes to distance herself from the father with a view to excluding him from the children’s life going forward – although the father clearly fears this. Rather as will be seen below, the sense one gets from the evidence is that primarily the move to Shanghai is a practical solution to the predicament that she and Mr J now find themselves in, both in terms of jobs and schooling.

29.  The mother and Mr J seemed wholly credible in the witness box. They both accepted the need for the father to be part of the children’s lives going forward. Mr J was also clear that his role was not that of a replacement parent. I accept what he has said on this point. Overall I accept that the mother’s application is a genuine one.    

Is the mother’s plan realistic, i.e. founded on practical proposals both well researched and investigated?

Finances

30.  As I have said one of the main issues in this case has been the lack of money. The mother complains that the father has failed to properly provide for both her and the children and that in particular that he has failed to pay the school fees. The father from his perspective has argued that the mother was always aware of their perilous financial state – something she denies. In any event whether the mother did or did not know, the fact remains that money was very tight – both during the marriage and even more so once the marriage had broken down.  Until recently the mother was working as a teaching assistant at the international school where the children were pupils and as a private mandarin teacher. This was in an attempt to maintain the children appropriately and to pay for the school fees. I accept that she was often obliged to work very long hours – usually until quite late into the evening and all day on Saturday. All credit must be given to her for that and her attempts to keep the family afloat. I accept though that this was unlikely to be sustainable longer term.

31.  The father for his part attempted to help pay the school fees. On the 15 April 2010 his credit cards were cancelled after he tried to pay for the school fees using his credit card facilities. At that stage he owed just under HK$380,000 on the credit cards alone. Shortly thereafter in May 2010 the parties separated. The father initially agreed to pay HK$3,500 per month for each of the two children. It is the mother’s case that on occasion the father failed to pay even this sum. It is difficult to ascertain whether or not this is true given that the mother’s bank statements have not been produced. However even on the father’s own case he was only paying her HK$7,000 per month in total until August 2011 when he restructured his debts. Thereafter he has been paying HK$15,000 per month. This left the mother in a situation where she has been trying to pay for all other expenses, including the school fees, herself.  

32.  What is now clear is that the father is significantly in debt. During his cross examination he admitted to now having loans of close to HK$900,000. He has been unable to contribute towards the school fees. He is presently earning HK$794,256 per annum (HK$66,188 per month). He is also entitled to an incentive payment of 30% of his annual fixed salary – if annual targets are met – i.e. a further HK$238,500 per annum. This is not guaranteed.

33.  The father proposes that the son be educated in the local ESF School and that the daughter attend a good local school. The main difficulty with his proposal from a financial perspective is that in order to be able to afford even this he will, by his own admission, have to rely on the HK$15,000 per month that he currently pays to the mother for the children’s maintenance to pay for the school fees. He offers nothing to the mother by way of additional financial support. Indeed his proposal is premised on the mother receiving less and not more financial support.

34.  The mother has made it clear that if her application is refused she will remain in Hong Kong with the children. She has nowhere to live longer term. Rents have recently gone up and she has been told that she would have to pay more to stay in similar accommodation to her current flat. Her present accommodation is quite small. She presently pays HK$16,000 per month. This is likely to increase. The children do not have their own room. She says that this is a heavy burden for her to bear. I accept that to be the case. She has not renewed her contract as a teaching assistant as that would mean her committing to remaining in Hong Kong for another year. She previously earned HK$18,000 in that regard. She also works as a part time mandarin tutor. She presently earns approximately HK$25,000 per month from her tutorial work. Put simply the father cannot afford to maintain her and the children in Hong Kong at even a minimal level. His proposal is prefaced on the mother obtaining further well paid and probably full time employment. The mother says that if she was forced to remain in Hong Kong that she would probably look for a similar position as before i.e. as a teaching assistant. She would also continue to teach mandarin as a private tutor. I accept that this would be extremely difficult for her to do longer term and would require her to work very long hours.      

35.  In contrast, the mother says that if she is granted leave that it will be possible for her and the children to live comfortably in Shanghai. This is especially given that Mr J’s new job in an international school in Shanghai will also enable the children to be educated free of charge as his dependants. In addition he has been told that they will be entitled to travel on the school bus free of charge and receive free school lunches. He also receives a housing allowance, a travel allowance, medical insurance etc. He is required to pay RMB4,000 per child per annum to cover miscellaneous items such as school books etc.

36.  The father has attempted to undermine Mr J’s evidence by suggesting that he is not entitled to certain benefits. This is reiterated in his closing. I do not accept this. For the record it seems quite clear that the situation is as set out above. To that end I have also reviewed Mr J’s employment contract, which seems to be in order. I accept that the children are presently registered at the school. I also appreciate that the school may not wish to put anything else in writing given that Mr J and the mother are not yet married. I fully accept Mr J’s evidence in this respect.

37.  The father also queries the ability of Mr J to support the children longer term given that he is now 59 years of age and that his present contract is for two years only.

38.  Although I appreciate that Mr J’s age may be a concern I nevertheless also accept that there is no mandatory retirement age on the international school teaching circuit. I also accept his evidence that most teaching contracts are now for a two year period only.

39.  The mother also has her own plans. She is of course from the mainland originally. She has contacts and family there. She wishes to look at various business opportunities and to work more on a part time basis. I accept that she will work in some capacity in due course and be able to contribute towards the family finances. She is clearly a bright and resourceful woman who, as I have said, came over very credibly in the witness box.

40.  All in all from a financial perspective the mother’s plan was practical and both well researched and investigated. The father’s attempts to undermine her proposal did not, it seem to me, hold any weight at all.

Other matters

Schools

41.  As I have said the father wishes the son to attend an ESF school and the daughter to attend a good local school. The father was originally offered a place for R to start at an ESF school this September. He was offered a place in year 5. The difficulty with this is that although it is clear that there was originally a place available there is no evidence to support the father’s contention that that is still the case. Likewise there is no evidence at all to suggest that the daughter could also attend the local school in question. The father has since tried to deal with this obvious omission by stating in his closing that

I met, the principal, Ms. L of R School again on Oct 31^st, 2011, Ms. L clearly stated that both R and V are already registered in the School, she suggested as the court may take some time to decide, both R and V can study in R anytime, no matter whether they will leave Hong Kong or not and the School always welcomes both R and V.

42.  This assertion has not been tested. It is not supported by any documentary evidence.

43.  Likewise the father has attached an e-mail from the ESF dated the 17 August 2011 which states as follows:

I refer to our conversation on 10 Aug 2011 regarding the application of R, in order to be fair to all other applications and parents, I have released the place to the next applicant on the waitlist.  However, in view of your situation and understand the families issues, please keep us informed if R doesn’t have any school to go to and if there is a vacancy available after the court hearing, we will be happy to reconsider your application again at K school.  R may need to be reinterviewed if it is over 9 month’s time as an updates.

44.  I do not accept that this is evidence that there is presently a school place available for R in the ESF.

45.  In any event the mother has some very real concerns that R would be going into the wrong year group in any event. He is presently aged 8 going on 9 and would have been in year 3 had he stayed in the international school that he has attended until recently. This is in the American system. The place that he was offered in the ESF system was in year 5. The mother is concerned, and with some justification it seems to me, that this would mean that he would have jumped a whole academic year. Certainly my understanding is that a child who is aged 8 going on 9 years would more likely be in year 4 in the ESF system and not in year 5 as suggested by the father. The father for his part did not seem unduly concerned about this and said that R had been assessed by the ESF and that they considered that he should go into year 5. It almost goes without saying that it is very important to ensure that both children are placed in their right year group. I share the mother’s concerns in this respect. 

46.  The mother also raised an issue about the mode of education. She does not wish the children to be taught in two completely different education systems. In addition, as far as V is concerned, she would be in an environment where the mode of teaching and the language of the playground is primarily Cantonese. I accept that given that the children’s mother tongue is English and their second language Mandarin that this would be far from ideal.

47.  Overall then I accept that all things being equal from a purely educational perspective, it would be better for these particular children to continue to be educated in an international school environment as opposed to either the ESF –or the local school suggested by the father.     

Accommodation

48.  The father suggests that the accommodation secured by Mr J and the mother is not genuine. I do not accept this. A copy of the lease has been produced together with copies of photos of the apartment in question. I accept that these are real and that the children will be housed appropriately in Shanghai. In particular I have noted that the children will each have their own bedroom.   

49.  Thus overall it seems to me that the mother’s plan is well researched and investigated both from a financial perspective and generally.

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

50.  I accept that the father’s opposition is genuine in the sense that he has “genuine” concerns about his children relocating to Shanghai as set out above. His difficulty is that the mother has really answered his concerns and the alternative proposals put forward by him do not in contrast seem as carefully thought out as those of the mother. As Mr Surman states at paragraph 21 of his closing:

21.  By contrast with the mother’s relocation plan, the father’s ‘plan’ for the children remaining in HK lacked careful thought.  Everything about the suggestions made as to their remaining in HK was speculative and lacked any clarity; whether it was housing or education.  In respect of education there was no evidence of school places, no real plan as to affordability of schools were the children to be offered places, and a penchant for making unilateral decisions with respect to education / schools.

With respect, I agree with Mr Surman.  

What would be the extent of the detriment to the father and his future relationship with the children, were the application granted?

51.  At present the father sees the children for one day over the weekend and for half of their school holidays. He is also able to speak to them daily. Although the mother’s relocation would make weekly access difficult, given that Shanghai is not too far away it would be possible for this to be countered by other alternative arrangements for weekend staying access. If handled appropriately it is hard to see how the father would really be affected detrimentally. 

Access proposals

52.  The Mother makes the following proposals for access if she is allowed to relocate with the children.

26.  The mother acknowledges that it is important for the children to maintain a good relationship with the father and that it is their right & her obligation to ensure good quality access is offered and encouraged.  Thus the mother’s proposals with respect to access are as follows:

(a)   School long holidays (except school holidays for PRC National Day) – half time with the father and half time with the mother.  Whoever takes the 1^st half will have the 2^nd half the following year, transportation costs for the children for access should be borne by the father.

(b)  School holidays for PRC National Day in October (in general, this is more than 4 days) with the father, transportation costs for the children for access should be borne by the father.

(c)   Weekend access if the father visits Shanghai and the father should give written notice to the mother at least 1 week in advance.  Costs to be borne by father.

(d)  Daily telephone/Skype access for 30 minutes between 7:00pm-8:00pm

(e)   Unlimited email access to the children (each child will have his/her own email address and are known to both parents)

53.  The father in his closing makes the following proposal in the event that the children are not residing with him in Hong Kong:

If your Honour comes to a decision to refuse the present application and the children were to stay in Hong Kong with their mother, I will hope to have the following access arrangement:

a)  I’ll expect to have more visits so I can have more time to stay with my children every week.  Now with only 1 day per week is not sufficient since I cannot help the children in their daily studies.

b)  I expect to have at least 2 hours per night every Mon, Wed and Fri so the children can play in my apartment and I can review their studies.

c)  The children are getting older, I can share their happiness and sadness in the night time before they sleep.

d)  Half of the School holidays each school calendar year to stay with me so we can travel to other countries for vacations.

e)  1 time every weekend, Saturday or Sunday visit.

If, however, your Honour is minded to allow the present application, I will hope to have the following access arrangement:

a)  I expect at least 1 time every month, I can stay with the kids at least 1 weekend, Saturday and Sunday in Shanghai or in Hong Kong;

b)  I expect no control in the emails or phone calls by the Petitioner, every day from 7 to 8pm;

c)  Half the School holidays, the children to stay with me in Hong Kong or we travel to other countries for vacations.

54.  The father maintains that the mother is trying to obstruct his access to the children. I can see no evidence of that here. Both access proposals seem sensible and are similar in their approach.  

To what extent would any possible detriment be offset by extension of the children’s relationships with the maternal family and homeland?

55.  Although the mother’s family are from Beijing as opposed to Shanghai, I accept that it will be possible for the children to continue to have regular contact with their maiden family. Likewise I would expect that the children shall continue to see their paternal family on a regular basis during the holidays and over weekends.  

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

56.  Although the Mother has filed no psychiatric or psychological evidence I accept that she would be very upset if her application was ultimately refused. In the witness box she stated that she would be

Heartbroken.

It’s very hard to imagine because emotionally and financially G [Mr J] supports me a lot.  It has been quite hard these couple months G lives separately.  Just sometimes I need someone to talk to but he needs to work.  If I need someone to talk, I can only talk to my psychologist.  It’s quite hard.

I accept that to be the case.

Social Welfare Reports

57.  Recommendations made to the court in social welfare reports, although not binding are very persuasive.  If the court decides not to follow the recommendations made then reasons must be given.

58.  In this case the Social Welfare officer recommended as follows:

33.  Due to financial condition of Madam Y and Mr C, it is inevitable that R and V have to change school and study in a new environment.  They have to adapt and adjust a new study environment.  When R and V are removed to Shanghai, they will have good opportunity to be exposed to a prosperous city and study in a school with international curriculum with little financial burden.  If they continue to live and study in Hong Kong, they will have the sense of security they need as they are familiar with the social and living environment here.

34.  During the social investigation, both Madam Y and Mr C have presented that they can afford the education expenditure of R and V to study in a school with international curriculum which is comparable to their previous school; provide stable maintenance for the children and give adequate parental care and company to the children in Shanghai and Hong Kong respectively.  The Investigating Officer considers that the remaining main concerns on the removal matter will be the readiness of R and V and the stability of their living and studying environment.  It is noted that R is more consistent to present his wishes to study in Hong Kong though he likes to visit and experience Shanghai.  V is vacillated because there is a drastic change of her views from rejecting to expecting the removal.  As the children love their parents and they care about the wishes of their parents, it will not be suitable to draw a conclusion and recommendation based on their expressions. The Investigating Officer views that R and V will have less adjustment difficulties and enjoy more stability when they live and study in a school with curriculum comparable to their previous school in Hong Kong.  If such kind of school placement in Hong Kong cannot be secured for R and V within a reasonable period of time to tie in with their studies in the new school year, it will be beneficial for them to live and study at Shanghai.

With respect I agree, save that I do not accept, as set out above, that the father would be able to afford the educational expenditure of R and V in Hong Kong and in addition maintain both them and the mother appropriately.

The children’s own views

59.  In the social welfare officer’s report the children seem quite conflicted. R said that he would like to remain in Hong Kong, but that if his mother stayed that he would prefer to live with her. If she left he would prefer to stay with his father and go to the ESF. He had not at that time visited Shanghai. He was also concerned about upsetting his mother. V for her part had at one stage been very upset. Initially she told the social welfare officer that she wanted to stay in Hong Kong. Later she changed her mind and said that she wanted to go to Shanghai. She seemed to be understandably concerned about what might happen to her pets.

60.  All in all though given the children’s young age I do not intend to attach any great weight to what they have told the social welfare officer directly. I concur with the social welfare officer’s approach as set out above.

What is in the best interests of these children?

New partners

61.  Finally it seems to me that in considering overall what is in the best interests of these children some consideration must be given to the role of each parties’ new partner. Although I have approached this case on the basis that there was no application by the father to vary care and control, in all cases concerning children the role of would be care givers is one that must be carefully considered.

62.  I have seen both Mr J and Ms S in the witness box. Mr J is 59 years old. He is considerably older than the wife. As I have said he came across as being a completely credible witness and was both measured and sensible in his responses.

63.  Ms S, in contrast, is extremely young. Although she is in a relationship with the father, he still pays her as his domestic helper. Thus their relationship is one of both employer and employee and cohabitants. Ms S came across as being somewhat anxious to please. She said that although she would like children of her own that she would treat R and V as if they were her own children. The father’s original plan was premised on Ms. S having a considerable amount to do with the children on a day to day basis. In contrast the mother’s proposal would mean that she would be able to resume her role as a full time care taking parent – at least in the short term. Although Ms S is no doubt well meaning and a perfectly able domestic helper there is no doubt in my mind that the mother’s plan is to be preferred. Please see L v C CACV 333 of 2007, Aslam v Ali CACV 144 of 2003 and P v P, CA 256 of 1996. The mother has always been the children’s primary carer. It seems to me that it would clearly be in their best interests for that arrangement to be maintained.

Conclusion on relocation

64.  Having considered all of the factors above, it seems to me that it would be in the best interests of these children to allow them to relocate with their mother to Shanghai.

Should there be any alteration to the access arrangements?

65.  I have noted both parties’ proposals for access. Both have something to recommend them. I will make an order nisi to be made absolute in 14 days time that the paragraph (1) (a) of the order dated the 10 February 2011 shall be varied to the extent that the father shall have staying access to the two children of the family once a month during term time from either Friday evening or Saturday morning until Sunday evening, either in Hong Kong or Shanghai. The transportation costs to be borne by the father.

66.  Further the Father shall have staying access to the children during the school holidays over the PRC National Day in October of each year – either in Hong Kong or in Shanghai. The transportation costs to be borne by the father.

67.  Further the father shall have unlimited e-mail access to the children and other access by agreement to include access by Skype and text.

68.  All other parts of the order in relation to custody and access dated the 10 February 2011 shall remain in effect.    

69.  I would further ask that the mother undertake to inform the father in the event that she wishes to relocate from Shanghai in order to reside with the children elsewhere. This should be included in the court order.

70.  I will make an order that there should be no order as to costs, to be made absolute at the expiration of 14 days. There shall be certificate for counsel. There shall also be liberty to apply in relation to the proposed undertaking and the access arrangements only.

Mr Giles Surman instructed by Messrs. Ip & Heathfield for the Petitioner

The Respondent acted in person