BA v BL (Child: Relocation)
Court of Appeal
Civil Appeal No 18 of 2018
Cheung, Yuen and Barma JJA
25 June, 25 July 2019

Family law — children — relocation — appeal against order relocating children out of jurisdiction — judge correct in adopting approach in Payne v Payne — drastic change of circumstances since granting of relocation order warranting setting aside order — amended application remitted to judge for consideration

M, a Colombian national and US green card holder and resident, and F, a US citizen, married in 2005 in New York. In 2008/2009, they moved to Hong Kong (HK) and eventually became HK permanent residents. In about 2010 and 2012 respectively, the couple had two daughters (“C1–2”) who had US citizenship. The parties’ marriage broke down and in May 2014, M unlawfully removed Cs to Miami. Following F’s successful application under the Hague Convention, Cs returned to HK in August 2014. F petitioned for divorce. In 2016, M applied to relocate Cs close to Miami, asserting that she intended initially to live with her parents with Cs. At the time of the hearing in July 2017, F was a school teacher, university lecturer and tutor and studying for his doctorate. He had been the main breadwinner. M was based mainly in Miami, apart from several visits to HK ranging from several weeks to about one year between December 2014 and December 2015 and had completed her degree in Developmental Psychology and secured a full-time job in Miami. Cs lived with F, who opposed Cs’ removal, arguing that he had been their primary carer since they returned from Miami; they were settled in good schools with numerous friends and should remain here. The Social Investigation Reports from the Hong Kong Social Welfare Department recommended that Cs should stay in HK with F, while the International Social Welfare (“ISW”) report recommended full custody to M and Cs’ relocation. The Judge granted the relocation to take effect the following summer after the academic year ended, because inter alia Cs would have bigger and better accommodation and the support of M’s extended family in Miami, whereas Cs and a full-time domestic helper slept in the living room of F’s flat, Cs were looked after by the domestic helper when F was at work; and it would be easier for F to move to the US or visit Cs during his three months of annual leave. F appealed. At the hearing, W gave evidence that she now lived with her fiancé, a US Government sailor, in a flat in San Diego and was expecting a baby in October 2019.

Held, allowing the appeal, that:

1) In Hong Kong, the paramount consideration was whether the relocation was in the best interests of the child (Re C (A Child) (Internal Relocation) [2016] Fam 253, ZJ v XWN (Leave to Appeal: Child Relocation) [2018] 3 HKLRD 644 applied). (See para. 4.12.)
2) Whether a relocation application was made by a primary or non-primary carer did not give rise to any presumption in favour of or against the applicant. Ultimately, it was only one factor in the overall assessment and the weight to be attached to it depended on the particular facts.  Payne v Payne should not be jettisoned. It identified factors which might be relevant to the welfare of a child in a relocation case, but it did not dictate the outcome (Payne v Payne [2001] Fam 473, SMM v TWM (Child Relocation) [2010] 4 HKLRD 37, K v K [2012] 2 FLR 880, Re C (A Child) (Internal Relocation) [2016] Fam 253, ZJ v XWN (Leave to Appeal: Child Relocation) [2018] 3 HKLRD 644 applied). (See para. 4.14.)
3) Cases should not become bogged down with arguments as to whether the label “primary care” or “shared care” was to be attached to the way in which the parents had provided for the care of the children (K v K [2012] 2 FLR 880 applied). (See para. 4.15.)
4) Here, the Judge’s approach, following Payne v Payne but ultimately basing her decision on Cs’ best interests, could not be faulted (Payne v Payne [2001] Fam 473 considered). (See para. 4.16.)
5) However, there had since been a drastic change of M’s circumstances which vitiated the Judge’s decision. There was little information about M’s present situation in San Diego and her plans for Cs. Accordingly, the relocation order was set aside, but M was allowed to amend her application for Cs to relocate to San Diego; the amended application was remitted to the Judge for consideration with updated Social Investigation reports to be obtained both locally and in the US. (See paras. 4.17, 4.20–4.21.)

Appeal

This was an appeal by the petitioner-father against the decision granting the application of the respondent-mother to relocate their two children to the US made by Judge Melloy on 28 September 2017. The facts are set out in the judgment.

Jurisdictions: 

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