Cpu v. Lcw

FCMC 13107 / 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 13107 OF 2008

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Coram: Deputy District Judge I. Wong in Chambers (Not Open to Public)

Date of Hearing: 10 – 11 September, 2013

Date of Handing Down Judgment: 2 October, 2013

__________________

J U D G M E N T

(Removal)
__________________

The Application

1.Before this court is the petitioner mother’s application for the removal of 2 children of the family out of the jurisdiction of Hong Kong to Canada for the purpose of immigration.

2.The respondent father opposes the application.

3.For convenience, I will refer the petitioner mother as “P” and the respondent father “R”.

The Background

4.The present application is merely the latest litigation that the parties have out of a series of legal battles dating as early as October, 2006 and spreading over 3 sets of proceedings.  But this application is certainly not the finale, yet to come are P’s judgment summons on the arrears of maintenance and R’s application for the variation of the maintenance order.

5.For the present purpose, I just need to refer to the saga briefly.

6.P is a XXXXXX and was born and brought up in XXXX.  She is now 40 years old.  She met her first husband in XXXXX, a Chinese gentleman from the Mainland, and they married in 1993.  A boy “E” was born out of this marriage.  P and her first husband divorced in about 1998.  Since then, E has been under her care.  E is now over the age of 18.

7.After the divorce, from about 1998 to 2001 P went to Xiamen of the Mainland with E, though during this period she returned to XXXX from time to time to complete her Bachelor of Arts degree.  In 2001, she found a job in Hong Kong and came here with E.

8.She met R in about May, 2002.  They lived together as husband and wife but it appears that their relationship had never been an easy one.  They separated for a while but eventually married in Hong Kong in April, 2006.  Before that, a boy “V” was born out of this relationship in June, 2005. 

9.Sadly, the marriage was short-lived.  In about end of August, 2006, P moved out of the matrimonial home with E and V.  By then, she was already pregnant with A, who was later born in March, 2007.

10.Decree nisi was granted on 2 February, 2009.  It was not until 24 May, 2010 that it was made absolute.

11.Since July, 2012 P has been living with E, V and A in a public housing unit allocated to them on compassionate grounds.  They are now living on CSSA and the maintenance of $8,000 per month from R.  This is less than the sums ordered by the court.  For this reason, P has taken out a judgment summons.  As I said, this is yet to be dealt with.

12.As E has come to the age of majority, the present application deals with V and A only.  In any event, E has decided to remain in Hong Kong to complete his education.  V and A are now 7 and 6 years old respectively.

13.R is now 49 years old.  He is an ethnic Chinese.  He was born in Vietnam when his father was working there on behalf of the Mainland government.  The family returned to the Mainland when he was about 2 years old.  In 1975, the whole family moved to Hong Kong.  R obtained a Bachelor degree majoring in social sciences and Chinese language from the Chinese College of the then University of East Asia, Macao.  At the beginning he assisted his father in his business which he claimed had once been very substantial before dwindling down.  In 1995, R went to Vancouver for 2 years visiting friends, taking courses and doing part-time jobs there.  From 1998 to 2000, he was employed as a Chinese editor.  After that, he started his own business but I was told this has now been suspended for 6 years.  He claimed to have been unemployed and living on the rental income of his late father’s estate which, I understand, essentially comprised of an apartment on MacDonald Road, the Mid-levels.

14.As I said, there are 3 sets of proceedings, all taken out by P. 

15.The first set of proceedings was issued under the Separation and Maintenance Orders Ordinance, Cap. 16 in October, 2006.  The 2^nd set was issued for judicial separation in March, 2007 and finally, the 3^rd set was for divorce, taken out on 3 November, 2008.  It is under the 3^rd set of proceedings that the present application is made. 

16.It is not necessary for me to go into the details of these proceedings.  It suffices to say that, all along P has been granted the sole custody of E, V and A.  The first order was issued on 18 June, 2007 pursuant to which the custody of the boys was granted in her favour and the latest order in the line was one issued on 12 March, 2008.  Thus, P has been the primary carer of the boys since June, 2007. 

17.R is given defined access to the boys.  Pursuant to an order dated 9 February, 2009, R has staying access of V and A for two-nights on a bi-weekly basis and for half of the holidays and on special days such as the birthdays of V and A as stipulated in the order.

18.This application would not come as a surprise if P is relocating the family back to her home country XXXX, but now the destination is Canada, a land where none of the family members have been to before.  The reason being that she married M, a Canadian on 28 February, 2013.  The newly wedded couple are now planning to build their new family there, bringing V and A along, with M as the sponsor for their immigration applications. 

19.R opposes the application. His stance is that P is free to go and she can leave V and A to him.  On the other hand, P is determined that the 2 boys should go together otherwise she is not going anywhere.

The Official Solicitor

20.In the mention hearing of 13 May, 2013, R alleged that the boys in fact hated P and inclined not to stay with her.  These allegations were entirely contrary to what had been reported in the Social Investigation Report.  In view of this, with the interest of V and A in mind, and also considering that both parties were unrepresented, the Official Solicitor was requested to represent the boys and a Report dated 3^rd August, 2013 (“the OS report”) was submitted. 

21.Furthermore, the court also obtained a Social Investigation Report dated 8 May, 2013 (“the SIR”) and an International Social Service Report dated 8 April, 2013 (“the ISSR”).

Recordings of Conversations

22.At the beginning of the trial, R sought to adduce 2 recordings which are said to be his conversations with the boys on two occasions, ie 27 August and 29 August, 2013.  He claimed these conversations manifestly reveal the true wishes and intention of the boys that they do not like to go to Canada and that they hated their mother because she maltreated them.  R was adamant that what the boys really need have not been reflected in the reports and so I should not ignore their truthful views.

23.I have no hesitation in rejecting the application.  Quite apart from the fact that both Mrs F, the social welfare officer and Ms Ip of the Official Solicitor have individually and separately interviewed the boys and there is nothing to suggest that the interviews were irregular or that the boys were being pressurized into giving their views, what is more crucial is the boys should not have found themselves to be caught in the middle of the conflicts between the parents.  They should not have been put under the spot-light and asked to make a choice, thereby subjected them to undue pressure.  In my view, this is entirely a matter of commonsense but unfortunately R has foolishly done so.  He should have realized that this does no good to his beloved children.  R’s behaviour should not be encouraged and I am prepared to put it in stronger term that it should be denounced.

24.In trial, Ms Ip of the Official Solicitor appeared for the boys.  As for the witnesses, apart from P and R, Mrs F also gave evidence in court.

The Facts

25.I believe the following facts are not in dispute; they are gathered from the parties’ evidence, both in court and in their affirmations, and the reports.

The Mother

26.P is now living with her 3 children in a 350 sq. ft. 3-bedroom public housing flat.  While she is a full-time homemaker taking care of the daily needs of the children, she has completed a diploma in Gemmology.  She is hoping to start a small business in jewellery in the future if the conditions are right.  In the meantime, she is being busily occupied by the boys and has not been able to do so.  She has been diagnosed as having suffered from adjustment disorder back in 2003.  She attributed this in part to the stormy relationship with R at that time.  She took medication for 6 months in 2003 but stopped because of the side effects. She has not been on medication since then until May this year when she tried it again for 2 days due to the stress that she experienced from the present proceedings.  She emphasised that the medication is optional for her.  She has no need to see the psychiatrist now.  She is now referred to the general clinic only and it is up to her own arrangement.  She said that in order to maintain the record, she has arranged to attend the general clinic once every 6 months. According to the SIR, updated medical enquiry was made in January, 2013.  The case medical officer commented that P’s condition was stable.

27.P is commented by Mrs F and in the previous SIRs that she has been able to give proper and adequate care for the boys and her mental condition has not compromised her parental ability. 

28.P came to know M on a dating website in about March, 2012 when the latter was visiting his parents in Hong Kong.  They continued their contacts after M had returned to Canada.  M came to Hong Kong again in mid July, 2012 and stayed with P and the boys at their home for a month, during which M is reported to have help P fixing her flat.

29.M came to Hong Kong again in December, 2012 and stayed with the family for another 3 months until 28 March, 2013, during which they married on 28 February, 2013.

30.M has engaged a consultant to process the immigration applications for P and the 3 children.  E is determined to remain in Hong Kong to complete his diploma in digital engineering first, after that he would then consider whether to pursue his career in Hong Kong, return to XXXXX or to join the family in Canada.  He is included in the application so as to make this option available to him if he so chooses. 

V and A

31.Both V and A are studying in local mainstream schools with Chinese as the teaching medium.   

32.V is attending primary 3 class.  He has been diagnosed to have attention deficit disorder and dyslexia. His condition is being followed-up by the Duchess of Kent Children’s Hospital. Medical inquiry was made in January, 2013 for comments on the proposed removal plan.  The return indicated that V requires on-going monitoring and his current state is stable.  Regarding his adjustment in a new environment, the doctor commented that V might benefit from small group teaching and input from educational psychologist.  The school has arranged after school tuition class to help V with his assignments and has adjusted the level of learning and requirement to suit him.  Notwithstanding that there is no requirement for the school to recruit teachers with special training to assist students with learning problems, there are about 5 teachers who have such qualification.  V’s class teacher in the previous school year commented that P is a committed and responsible parent.  V is reported to have shown considerable improvement.

33.A is attending primary one class.  He has been diagnosed to have attention deficit hyperactivity disorder.  By a letter dated 23 January, 2013 from the Duchess of Kent Children’s Hospital, it is assessed that his behaviour would probably benefit in a relatively settled environment.  He has recently been medically assessed as having no obvious behavioural problem.

34.It is reported in both the SIR and the OS report that the 2 boys are positive towards moving to Canada. The OS report even stated that V was not too happy with R’s objection to the removal plan:  para. 23 of the OS report. 

The Father

35.R remains single and is living with his elderly mother (“the Grandmother”) in a public housing flat; he, however, is not an occupier approved by the Housing Authority.  In other words, legally speaking, he has no right to live there.  He claimed to be unemployed.  I understand this situation has been subsisting for a couple of years.  He has no intention to seek for jobs and has been living on the rental income from his late father’s estate and on bank loans.  The Grandmother is found to have suffered from heart disease, diabetes and rheumatoid arthritis and recently found to have nascent elderly cognitive disorder.  When she hears noise or banging sound, she would imagine someone would do harm to her. Nevertheless, R claimed that her condition is stable, that she needs follow-up by psychiatrist once every 4 months only and that she has been able to manage the household chores and prepare meals for the children during access.  That said, R claimed the Grandmother is in need of 24 hours attention.  His eldest sister and her family are in Ottawa and the second elder sister, also married, though living in Hong Kong, is preoccupied by her own business.  R said he is primary carer of the Grandmother.

M

36.M is now 58 years old.  He is also an ethnic Chinese and emigrated from Hong Kong to Canada about 40 years ago.  In the early years he ran a family restaurant business.  In about 2005 he retired from the business after having sold it.  A few years later, he re-entered the work force and is now employed as a road maintenance worker.  He is reported to have regular and adequate income.

37.M has one previous marriage.  He divorced in 1995.  He is now living with his younger daughter AC, now aged 28, in XXX, Ontario.  According to the ISSR, M’s house is a spacious single dwelling house in an affluent residential area of XXX.  It has 2 floors and a basement and comprised of 5 bedrooms.  The 2 boys will be using one of the bedrooms and M plans to convert the basement, which is now being used as a family room, into a play room for the boys.  The ISSR assessed that the house has sufficient space with no identifiable hazards that would place the boys at eminent risk of harm and is suitable to meet their needs.

38.M is reported to have acted in a parenting role while staying with the boys and he is willing to support the boys’ development into adulthood.  The ISSR also commented that M “is financially stable and resides in a community with ample resources, he appears willing and able to meet the basic needs of the children on a daily basis” (see Para 4:  Impact of Kin Service placement).

AC

39.AC, M’s younger daughter, has a bachelor degree.  It is reported that she has a great passion for baking and is now working in a bakery.  The ISSR stated that AC is supportive of the relocation plan and she is looking forward to P and the boys’ moving into the home and further build relationship with them.  As a matter of fact, she has already been communicating with P through emails.

40.R met P and M at least twice to discuss on the removal plan but they were not able to come up with any solution.

41.M was interviewed separately by both Mrs F and Ms Ip.  His interaction with V and A was also observed on 2 occasions.  The boys were seen to have interacted with him naturally and responded to him spontaneously.

The Mother’s Case

42.P believed it would be in the best interests of the boys to go with her to settle in Canada on a permanent basis.  She will continue to look after the boys and the new family on full-time basis.  It is planned that the boys will be attending a public school in the neighbourhood.  M is reported to have made enquiry with C school, a public school within a walking distance from home.  According to P’s research, there are educational psychologists in public schools and from the materials that she gathered, 21.50% of the teachers in C school have been trained to help students with learning problems.  There are also education services for new immigrants as well as for children with special needs.  P considered that the education system there in general is more supportive to children with special needs whereas in Hong Kong, the support within the education system is rather limited.

43.She also added that the better air quality in Canada would definitely help to relieve the boys’ asthma.

44.Apart from the boys’ XXXX heritage, P acknowledged R’s concern that it is important to maintain the boys’ Chinese heritage and their language.   She agreed to arrange private Chinese tuition classes for the boys provided that R honours his undertaking to pay for the costs.  However, if it is proved to be not beneficial or resulting in extra stress, she would opt for a more relaxed approach such as joining summer camps or trips to China to learn Mandarin.  In any event, the local district school board also offers Chinese classes for students and M could also teach them Chinese at home.  M’s siblings are all living in Canada.  The members of the extended family all speak Cantonese and habitually gather for activities and festival celebrations.  At the same time, R may also teach the boys Chinese during access. 

45.Further, the boys have already been very connected with M during his stay in Hong Kong; and they have continued the communications by Skype and over the internet. 

The Father’s Case

46.In evidence, R alleged that what the boys said to Mrs F and Ms Ip were not true since they were under the threats of P.  He even asserted that P has treated the boys as slaves. 

47.As regards the removal plan, R has 3 concerns:

(i)	whether the boys would be safe in Canada;
(ii)	whether they would continue to learn Chinese; and
(iii)	whether they have genuine wish of going there.

The First Concern

48.As regards the first concern, R claimed that according to what he heard from the boys, P abused them by pulling their hairs (“the Hair Pulling Incident”) and this caused adverse implication, both physically and psychologically, on them.

49.R stated the incident happened about 2 years ago and he had previously told the judges who heard other matters between the parties. 

50.R also mentioned, again from the boys’ words, that at about the same time there were on more than one occasion when a chair, glass and metallic plates and wares were thrown in the presence of the boys (“the Chair Throwing Incidents”).  He does not know who did these but he gathers that they were done by P’s then boy friend.

51.It is on this basis that R alleged that the boys need protection, and it is for this reason that has led him not to concede to the removal plan.

52.P denied these have ever happened.  She further added that in any event the Hair Pulling Incident has been tried and determined in previous proceedings.

53.The history of the proceedings shows this is the case. 

54.By a summons dated 3 May, 2010, R sought the variation of the custody order in respect of V and A.  In response, P issued another summons on 12 July, 2010 seeking limited supervised access during the children’s medical treatment.  I do not think it is necessary for me to go to the details of this trial.  Suffice to say is that one of the grounds in support of R’s application was that P had abused the boys, in particular by pulling their hair.  The trial of these 2 summonses took 6 days during which P, R, one Mr H, the then case social welfare officer and Ms C of the Official Solicitor gave evidence in court.   As can be seen from the Judgment dated 20 April, 2011 (“the Judgment”) by HH Judge Chu, Mr H and Ms C had been subject to extensive cross-examination by R.  In paragraph 49 of the Judgment, the learned judge came to the following conclusion on the Hair Pulling Incident,

“49. As mentioned earlier, (R) had placed great emphasis on the “Hair Pulling Incident” which he regarded as some sort of physical or psychological abuse.  (R) is , however, not a psychologist or a psychiatrist.  I must say I do not find that there was any sufficient evidence to support such Hair Pulling Incident/s did take place.  In any event, even if such incident/s did take place, there was no independent expert evidence that such would amount to any kind of psychological/physical abuse/harm as alleged by (R).  (R) was not specific about the incident/s, and only gave a very general account of what he claimed to be said by V and A.  V and A were very young, being 5 and 3, at the time, and could have exaggerated such incident/s.  Anyway, I find no sufficient evidence to support (R)’s allegations in this respect which in fact came to light only over 3 months after (R)’s Custody Summons was issued.”

55.For the reason that the very same issue has already been argued and determined in a trial proper, R is bound by the above findings and he is estopped from raising the same issue again.   Nevertheless, it is clear that this incident, if it ever occurred, happened about 3 years ago.  I fail to see how this could help R.  Same for the Hair Pulling Incident, the Chair Throwing Incidents suffer the same inherent defect in that they lack particulars, not to mention evidence.  R averred that they happened at around the same time as the Hair Pulling Incident.  If that is really the case, I wonder why R did not raise these to the court when he applied for variation of the custody order back in 2010 or 2011.  I have no doubt that R fails to prove his allegations.  In this regard, it has to be mentioned that as a matter of fact, all the previous SIRs (a total of 8 including the most recent one prepared by Mrs F on removal) and also the OS report remarked that P has been giving proper and adequate care for the boys. 

The Second Concern

56.As for the second concern, R took the view that the 2 boys should stay in Hong Kong for a few more years, at least up to after the completion of their primary school, before going to Canada so that they would have the opportunity to have a good grip of the Chinese language; and further that by then, they would have learned better to protect themselves.  That said, R accepted that he has made a proposal to P and M that he is willing to be responsible for the tuition fees if private Chinese lessons are arranged. 

57.I will deal with this concern in the later part of this judgment.

The Third Concern

58.On the third concern, R maintained that the boys in fact prefer to stay with him. The boys have repeatedly confided to him that P does not treat them well.  If they have done anything wrong, they would met with stern punishment.  They do not have affection towards P and have no respect for her.  They obey P out of fear only; as a result, they are constantly under stress.  P is a liar; she always forces the boys to hide what P did to them.  R insisted that if the boys are with P, pain would follow them wherever they go.   

59.All in all, R opposed the application because up to now there is no guarantee that his concerns are properly addressed.  Whilst he accepted the air quality and the social facilities in Canada may be better than those here, his concerns however are not so much on the future living, education or medical well being of the boys, he emphasized that his concern is an immediate one - their safety.  P suffers not only from mental illness but also wicked characters; she is not suitable for taking care of the children.

60.He implored the court to understand the true wishes and intention of the boys.  They have a clear message that they want to stay with him and do not want to go to Canada. However, when he was being asked if that is the case why he has not made any application for the variation of the custody order.  His answer was that from his past experience, he does not have much expectation of success and hence, nobody would help the boys.  He also stressed that the boys know this and that is why they never tell the truth to anyone, except to him.

61.I have no doubt that these are all mere say-so of R.  Perhaps apart from the recordings that he said would disclose the true faces of P and the real wishes and intention of the boys, there is not a shred of evidence in support of the allegations.  Mrs F and Ms Ip have individually and separately interviewed the boys, there is no even a hint that the boys were under any pressure to speak their minds.  Both of them, especially A, are reported to have been forthcoming in expressing positively about starting a new living in Canada.  Both of them are looking forward to moving on; and more importantly both have expressed their wishes to continue to be under the care of P.  If the boys have been in such a dire and desperate situation, I am not able to fathom why R, being such a caring and loving father, would have stood aloof for at least 2 to 3 years in the past without saying a word to the boys’ teachers and their school social workers.  The truth is none of the teachers and the social workers have noticed and reported any abnormality.  I have no doubt that these allegations are unfound and are R’s own invention. 

62.For the above reasons, I do not find any merits in this so-called concern.

The SIR and the OS report

63.Both the SIR and the OS report are supportive of P’s application for removal.  Mrs F has the following to say in her conclusion,

“42. It is most natural that children generally develop stronger bonding with the residing parent who is taking care of their day to day living.  As observed during this enquiry, for V and A who have been under the sole care of their mother ever since the parents divorced, their emotional bonding with the mother is undeniably stronger.  Yet, on the other hand, continuous access with their father has also enabled the children to build up a close father-child relationship. 43. It may be true that there will be conflict between the children and the mother at times.  This naturally happens in any parent-child interaction particularly when that parent is to perform the disciplinary role.  Over the years the children and the mother live on the ‘reduced’ maintenance from the father plus the assistance from CSSA.  Though with a tight budget, the mother has proved to be able to manage the family living at adequate standard.  She secures the children with schooling and accommodation.  She takes care of their medical and educational concerns.  She takes them out for fun on holidays.  She shows herself a capable parent.  To prepare for the removal of the children to Canada, the mother did lots of research on respective schools and available educational services to help V and A.  This suggests that the mother is a careful and well planned person. 44. On the other hand, the father who does not need to deal with the every day matters of the children is more of a figure of fun and joy.  Doubtlessly, the children love him and enjoy being with him.  Yet, this is not indicative to the father’s caring capability.  As a matter of fact, the father’s experience in taking care of the children is limited to holidays only.  His ability to take care of the children in the long run has yet to be tested out.  When further considering that the father now needs to take care of his mentally ill elderly mother whom he described as requiring intensively 24 hours’ care from him, it is worried if he can have time to handle the children’s needs. 45. Another concern is about the father’s unclear financial position.  He claimed himself a person with debts years long (長年負債).  If the father is on debts all the time, it will be a great concern on how he manages renting an accommodation at $15,000 per month for the children.  The father has suggested that in the worst scenario, the children can live in the public housing unit of the paternal grandmother.  Yet the update condition of the said public housing unit cannot be assessed as the father declined home visit.  Furthermore, the father and the 2 children are without tenancy right at the unit.  The father, being the primary carer of the elderly grandmother, might stand some chance in being added into the tenancy if he applies.  But the 2 children, whose custody is with the mother, are not eligible persons to be added.  After all, they are the grandchildren of the householder only and cannot be a carer role to the householder.  The undersigned has reservation on the feasibility and stability of the care plan of the father. 46. The father’s concern on maintaining the cultural heritage is understandable.  Enquiry indicates that the mother and her present husband M are supportive to it.  They commit they would try arranging relevant tuition or activities for the children. Actually, given that M is a Chinese and many of his Chinese family members are residing close to him, the chance for V and A on maintaining linkage with Chinese culture is optimistic.  After all, the 2 children will continue to talk to  M (and his relatives) in Cantonese. ……… 49. Remaining in Hong Kong or relocating to Canada inevitably brings effects on the children.  Leaving Hong Kong will mean some disruption of their study, less face to face contact with their father.  Removing to Canada will mean adjustment to new living routine, new school and new friends.  But these things are not necessarily negative and apparently not insolvable problems.  I honestly believe that P and M are able to help V and A cope with the situation well.  Given the well established supportive educational services for special needs children in Canada, I also look forward that V and A will experience a more happy and beneficial learning process there.  In sum, I support relocating V and A to Canada.”

64.As for the OS report, Ms Ip is of the view that the boys are likely to benefit from the relocation in terms of living environment, activities exposure, less stressful study environment and more supportive educational system:  Para. 119 of OS report.

65.In para. 132, she wrote,

“132.  It appears to us that the Children has all along been well looked after by the Petitioner and she has considered the best interests of the Children in her plan.  There is certainly no evidence to the contrary.  Though the Respondent’s reluctance and worries mentioned above are understandable; in view of the preparations and arrangements made for the Relocation, the Petitioner’s child care plan should be regarded as sufficient and practicable.  The Petitioner should assure that her psychological condition would be maintained good and stable under proper and regular medical care.  The Children are at tender age and are expected to easily overcome adjustment and language problems in a new environment.  In the circumstance, the Official Solicitor is of the view that the Application is for the benefit of the Children.”

The Legal Principles

66.The Court of Appeal has recently in SMM v. TWM (Child:  Relocation) [2010] 4 HKLRD 37 confirmed the applicability of the Payne v. Payne principles in Hong Kong.  Hon Cheung JA (as he then was) succinctly set out the principles:

“The principles 19.  The parties agreed that the applicable principles governing relocation application are based on the Payne v. Payne [2001] Fam 473 line of cases.  They are English Court of Appeal cases.  There is no House of Lords’ decision on this issue.  These principles have been applied in Hong Kong, for example, in M v. B (Removal of children from the Jurisdiction) [2009] HKFLR 349, by H H Judge Bruno Chan although there has not been any Hong Kong Court of Appeal decision on relocation applications. 20.  Payne is based on the earlier decision of Poel v. Poel [1970] 1 WLR 1469.  In Re G. (Leave to remove) [2008] 1 FLR 1587 the English Court of Appeal reaffirmed the principles in Payne. 21.  The principles in Payne can be summarised as follows : (a)  The distinct features of a relocation application are first, the applicant is invariably the mother and the primary carer; second, generally the motivation for the move arises out of her remarriage or her urge to return home; and third, the father’s opposition is commonly founded on a resultant reduction in contact and influence. (per Thorpe LJ at paragraph 27) (b)  The two propositions that have been consistently applied by the Courts are, first, the welfare of the child is the paramount consideration; and second, refusing the primary carer’s reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children.  Therefore her application to relocate will be granted unless the Court concludes that it is incompatible with the welfare of the children. (per Thorpe LJ at paragraph 26) (c)  The application should be approached as follows : (i) Is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life?  Then ask, is the mother’s application realistic, i.e. founded on practical proposals both well researched and investigated?  If the application fails either of these tests, refusal will inevitably follow. (ii) If, however, the application passes these tests then there must be a careful appraisal of the father’s opposition: is it motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive?  What would be the extent of the detriment to him and his future relationship with the child were the application granted?  To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland? (iii) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal? (iv) The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist in so far as appropriate. (per Thorpe LJ at paragraph 40) (d)  In short, the relevant factors are  : (i) The welfare of the child is always paramount. (ii) There is no presumption created by section 13(1)(b) of the English Children Act1989 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) 22. The above principles referred to the Children Act1989 and residence order.  They are not available in Hong Kong and I will address them later.”

67.On the application of these principles in Hong Kong, His Lordship said as follow,

25.  After 1997, the English authorities are longer binding in Hong Kong but they remain persuasive authorities.  It has been said that it is of the greatest importance that the Courts in Hong Kong should continue to derive assistance from overseas jurisprudence : per Li CJ in A Solicitor (24/07) v. Law Society of Hong Kong [2008] 2 HKLRD 576.  26.  The Children Act 1989 abolished ‘custody’ and ‘access’ orders and replaced them with ‘residence’ and ‘contact’ orders.  The Act stated that notwithstanding separation or divorce each parent continues to have parental responsibility even if a residence order has been made in favour of one of them.  27.  Hong Kong has continued to use the terms of ‘custody’ and ‘access’ under section 10 of the Guardianship of Minors Ordinance (Cap. 13) (‘GMO’) and the term ‘custody’ in section 19 of the Matrimonial Proceedings and Properties Ordinance (Cap. 192) (‘MPPO’).  It is clear, however, that the Family Courts in Hong Kong have in line with the modern approach granted joint custodial orders which emphasised the continuation of parental responsibilities and Judges in Hong Kong have also adopted the welfare checklist in section 1(3) of the Children’s Act : see, for example, H H Bruno Chan in P v P (Children : Custody) [2006] 2 HKFLR 305.  28.  In my view since our matrimonial jurisdiction has followed that of England because of the historical connection, Hong Kong can and should draw from the wealth of experience of the English Family Courts to nurture and supplement the development of our own family jurisdiction on matters concerning principles which are not dependent exclusively on legislation.  The Payne principles should be applied and adopted in Hong Kong as well. 29.  It should be noted that the Hong Kong Law Reform Commission Report on Child Custody and Access (7th March 2005) has recommended changes to the GMO, by, among other things, replacing custody orders with residence and contact orders.  There has been no implementation of the recommendation yet.  In my view the Administration should make a serious effort in implementing the recommendations by legislation soon.”

68.With the above findings of fact and guided by the above legal principles, I now proceed to deal with P’s application.

Should permission be given for the boys to leave Hong Kong in order to relocate to XXX, Ontario, Canada, with their mother? 

69.In referring to the Payne guidelines, I would adopt a step by step approach outlined 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 boys’ life?

70.I have seen and heard P’s evidence in court.  She struck me as an intelligent and candid person.  I think it is not an overstatement to say that she is approved by all concerned with the upbringing and welfare of the boys, except R, to be a responsible and committed parent, giving proper and adequate care to them.  I accept that she has a genuine wish to start her new family with M in Canada.  I accept that since M has been living in Canada for 40 years, it is not practicable for him to return to Hong Kong to start a new family here.  I accept P’s evidence that for the reasons that the materials and technique of road maintenance here are different from those in Canada, it is virtually impossible for M to find a comparable job here, let alone a comparable salary.  Moving to Hong Kong may also mean he would not be able to keep up with the mortgage payments of his house in XXX.  In addition, M would need to solve his housing need.  It is uncertain as to whether he can move into P’s public housing flat.  Thus, it seems clear to me that the only logical solution is for P to move rather than the other way round.

71.P also correctly accepted that R, as the father of the boys, should continue to pay an important role in their lives.  In trial, from the questions that she put to R and her submissions to court, I can see that she has addressed her mind to the practicalities of the access arrangement.  For instance, it is obvious that she is aware of the fact the R has been reluctant to communicate with her, hence she tried to seek assurance from R that he would communicate with her regarding access such as the flight details and she even explored whether assistance from the social welfare officer can be obtained in this respect.

72.On the materials before me and having gone through the bitter history of this case, it appears to me that Hong Kong does not have much to offer P and she is somewhat trapped here only because of her marriage to R.  After having lived with this case for some time, I believe even if P has not made this application as a result of her marriage with M now, sooner or later she would try to relocate herself, together with the boys, back to her home country.  I do not find any sinister or improper motive on her part to exclude R from the boys’ life.  The objective fact is that despite all the hard fought battles between them, by and large the parties have been able to carry out access smoothly without conflicts or assistance from social workers.  As a matter of fact, and this has not been disputed, probably in view of the expected departure in the near future, P arranged two extra 6 days’ access for the boys during the last summer vacation.

73.The stability of P’s relationship with M is also a concern for me.  No doubt it has a direct bearing on the welfare of the boys.  Both Mrs F and Ms Ip have interviewed P and M.  In particular, Ms Ip has spent time to understand how their relationship developed, how they perceived each other and their preparation of the marriage.  Despite the short duration of the courtship, it appears that both have given serious thought on their relationship and the responsibilities that entail in taking the move to relocate to Canada.  It is impressive to note from the ISSR that M has already had plans to convert his home to cater for the boys’ accommodation, contacted the school in the neighbourhood and prepared to assume a parenting role in providing support and needs of the boys.  And I need to mention this is also the observation of Ms Ip.

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

74.P impressed upon me as an intelligent and articulated person.  Her supporting affirmations provide the court with an understanding of M’s neighbourhood, and the educational, social and medical facilities nearby.  As has been mentioned above, M has already spoken with the school.  There is also confirmation from his immigration consultant that once the boys have landed, notwithstanding that their application for permanent residency may still be pending, they are entitled to start schooling and will not be charged international student fees.  I was also told that approval for M to sponsor the application has been granted. Furthermore, there is already an established and well furnished accommodation awaiting the boys.  M is reported to have 2 cars, one of which could be used by P for commuting the boys.

75.For the above reasons, I am satisfied that P’s plan is realistic, ie founded on practical proposals both well researched and investigated.

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? 

76.R’s opposition is understandable.  I accept that he loves the boys.  Their departure on a permanent basis would mean substantially less face to face contacts with them.

77.However, I have already dismissed his allegations regarding P’s cruelty and abuse to the boys.  I also accept that the boys are looking forward to start a new living in Canada, as have been reported in the SIR and the OS report.  Further, given that R also accepted that Canada has better to offer in terms of air quality and social facilities, I cannot help considering that his opposition is not motivated by a genuine concern for the future of the boys’ welfare. 

78.Both parties are in agreement that maintaining Chinese heritage and language is important for the boys.  With respect, I do not believe moving to Canada would necessarily mean losing their heritage and language.  M and his siblings are all Chinese speaking, and I think it cannot be disputed that there is a sizeable Chinese community in the Greater Toronto area of which XXX forms part.  Nowadays with the advent of ever improving digital and internet technology, regardless of one’s location there is no lack of means of learning Chinese.  Further, as P has rightly pointed out, R could teach the boys Chinese during access, whether by Skype or other similar tools or during face to face contacts.

79.Perhaps the heart of the matter is who is going to set the benchmark.  R maintained that the boys should wait until ‘at least’ they have completed their primary education.  R is not saying that the boys can go by then because whether they can go or not would depend on their proficiency in the Chinese language.  To me, the understatement is that R is the one who is going to judge whether the boys’ Chinese ability by then are good enough to go.  This could be a never-ending exercise and could also lead to never-ending dispute.  It seems to me that this concern, or put it more accurately this pre-requisite, is for his pride or sense of comfort more than the needs or welfare of the boys.

80.I am of course conscious of the extent of the detriment to him and his future relationship with the boys. Both of the boys expressed their love towards the father and they, especially V, would miss the father.  However, as I said, nowadays there is no lack of means of communication.  Very often, what is lacking is the will and intention to communicate.  Apart from face to face access, there are Skype, face time, whats app, emails, letters and phone calls available for keeping the relationship.  In this regard, Ms Ip has the following proposal on access in the OS report.

(1) P shall provide communication means, such as computer, webcam and phone, for V and A to maintain contact with R by Skype, email, letter, phone call, etc on a minimum frequency of once a week. (2) R travels to Canada to visit V and A bi-annually, the travelling costs to be borne by R. (3) V and A travel to Hong Kong bi-annually, the travelling costs of which to be borne by P.  P shall arrange an adult accompanying the boys to travel to Hong Kong; or R’s relatives (such as R’s elder sister or his cousin) travelling to Hong Kong from Canada could bring V and A to and back from Hong Kong. (4) When V and A attain their respective age of 10-13 and depending on their development in light of their sickness, P will arrange with the airline for the boys to travel to Hong Kong unaccompanied every year for access of 6 weeks, the travelling costs of which to be borne by P and R on equal shares.

81.P agreed to the proposal.

82.As for R, it is unfortunate that he refused to deal with this issue in trial.  He should have appreciated that his input in this regard is important to the welfare of the boys.  His un-cooperative approach does no good to the boys.

83.Despite his self-serving statement that he is unemployed and is living on the rental income of his later father’s estate, R has not disclosed the details of his receipts, for instance, his share in the rental income and the disposable income he has.  That said, it would appear that the rental income has been sufficient to maintain his living without the need to find a job and for keeping a car.  It has also been reported in the OS report that R also considered that he should be able to support his own flight ticket and could stay at the eldest sister’ home when he is in Canada.  I consider that R should be capable of footing his travel.  R’s eldest sister and her family are living in Ottawa, which I understand is only a 4-hour drive from XXX.  I believe R and the boys can stay in the eldest sister’s place during access.  Further, if R is concerned about the boys in any aspects, his eldest sister should be able to give him a hand.

84.In trial, R maintained that he would not be able to leave for Canada to exercise access because the Grandmother needs 24-hour care.  He would not be able to leave the Grandmother alone; this prevents him from travelling for long.  From the manner in which he conducted the trial, I believe this is more an excuse rather than an actual obstacle.  I fail to see why he cannot enlist the assistance of his second elder sister who is living in Hong Kong and/or suitable social services.

85.Another area of concern is whether there will be suitable accommodation for the boys’ return for access. Again, it is unfortunate that R refused to engage and declined requests for home visit by Mrs F and Ms Ip.  R’s explanation in court is that home visit would just be very superficial and his sons do not need this.

86.It is true that the boys are now staying in the Grandmother’s place during access, hence, it appears that the place should be adequate and proper. However, I am mindful of the Grandmother’s health condition, in particular, whether her cognitive disorder would pose as a hazard to the boys.  According to R, the Grandmother’s situation has been stabilized but it has to be noted that this is a self-serving statement without verification by Mrs F and Ms Ip due to R’s un-cooperative approach.  Further, I cannot ignore the fact that apparently R is reluctant to communicate with P and the boys may be predisposed to have more health issues while in Hong Kong.  Considering all these, I am of the view it would be useful for the Hong Kong access to be supervised, at least on the first return.

87.I accept P’s evidence that because the boys’ application for permanent residency takes time, it may not be possible for them to return in the following year.  In the circumstances, the solution would be for R to exercise his access in Canada first and then for the boys to return in the second year and so on so forth.

Impact on the mother of a refusal of her realistic approach

88.I have no doubt that a refusal would have serious implications on P, both in terms of her financial situation and her marriage.

89.I was told, and this is not disputed, that with the change in her status after having married with M, it would have adverse impact on her entitlement to CSSA and public housing benefit, for the reason that, strictly speaking, the relevant authorities would need to take M’s financial resources into account.  I was told that the Social Welfare Department and the Housing Authority are now taking an expedient stance by treating her as ‘separated’ from M so that she is considered as living under a separate household pending the outcome of this application. This has allowed her and the boys to continue to receive CSSA and staying in their flat for the time being.  In the event of a refusal, M’s financial resources may have to be taken into account.  It is possible that CSSA would be withdrawn and their dwelling would be at stake.  This would certainly be detrimental to the welfare of the boys.  Further, as far as her marriage is concerned, P frankly admitted that she does not see how her marriage could go no.  In that event, the psychological impact on her could not be overlooked, and again, this may impact detrimentally on the welfare of the boys.

Conclusion

90.At the end of the day, the ultimate legal principle that I need to be concerned with is that the boys’ welfare is the court’s paramount concern.  Having weighted all the above and for the reasons aforesaid, in my judgment, the removal plan would be for the best interest of the boys.

Leave Granted 

91.I therefore grant leave for P to remove the boys out of the jurisdiction of Hong Kong for the purpose of immigration to XX, Ontario, Canada.

Access Arrangement

92.As regards the access arrangement after the boys’ departure, I give the following orders:

(1)  R shall have access to V and A in Canada on a bi-annual basis (“the Canada access”). The travelling costs shall be borne by R. (2)  R shall have access to V and A in Hong Kong (“the Hong Kong Access”) on a bi-annual basis.  The travelling costs shall be borne by P.   (3)  For the first Hong Kong Access, P or an adult to be arranged by P shall accompany the boys to return to Hong Kong at P’s costs; and for the second Hong Kong Access, R at his own costs shall arrange an adult to accompany the boys to return to Hong Kong.  P and R shall take turns to arrange an adult to accompany the boys to return to Hong Kong until paragraph (5) applies. (4)  The Canada access and the Hong Kong access shall take place in alternate year.  The Canada access shall first take place in the year following the departure of the boys and the Hong Kong access to take place in the following year. (5)  When V and A attain their respective age of 10-13 and depending on their development in light of their health conditions, P shall arrange with airlines for the boys to travel to Hong Kong unaccompanied every year for access, the travelling costs of which to be borne by P and R in equal shares.  This access arrangement when in place is to replace the Canada access and the Hong Kong access set out in paragraphs (1) to (4) above. (6)  The above access shall not be less than 4 weeks each.  If the parties agree, it may be extended to not more than 6 weeks each. (7)  R shall also have access to the boys by Skype, e-mails, Whats App, letters, phone calls and texts.

Supervised Hong Kong Access

93.I am conscious of the mental condition of the Grandmother since in all likelihood, the boys will continue to stay with the Grandmother during the Hong Kong access.  I therefore order that the Hong Kong access be subject to supervision for 2 years from the date hereof or up to the completion of the first Hong Kong access whichever is the later.  A progress report is be submitted within 3 months of the expiry of the supervision.

Undertakings

94.I would further require P to undertake to provide communication means, such as computer, webcam and phone for V and A to maintain contact with R and to inform R in the event that she wishes to relocate from XXX in order to reside with the boys elsewhere.  P also agrees to undertake to provide R with V and A’s school report annually.  These undertakings will from part of the order made in this judgment.

95.At one point, I considered that a mirror order might be required.  However, after having seen and heard the evidence, P impressed upon me as a responsible parent.  There is nothing to suggest that she is not going to comply with any orders regarding access, nor is this the allegation of R.  After giving careful thought on this matter, I do not think a mirror order is necessary.

96.Ms Ip suggested it is warrant to obtain an annual International Social Service Report for the first few years to see how the boys are doing.  Mrs F has also confirmed in writing subsequent to the trial that this could be done.  Again after giving careful thought on this matter, since the leave granted herein is for permanent removal, I do not see any practical purpose being served for obtaining such as report.  In this regard, Ms Ip also made it clear that the Official Solicitor would still support the removal in the absence of the reports.  If R is concerned to see how the boys are doing in their new home, he is urged to make his own efforts and there are ways and means for him to do so. 

97.There shall be liberty to apply in relation to the proposed undertaking and the access arrangement only.

Costs

98.Ms Ip has made it clear that the Official Solicitor is not seeking costs. I will make an order that there should be no order as to costs, to be made absolute at the expiration of 14 days.

99.Finally, it remains for me to thank Ms Ip for her assistance to the court.

Representation

CPU, the petitioner, in person

LCW, the respondent, in person

Ms Eunice Ip, of the Official Solicitor, for the children of the family