H v W

Hon Lam VP, Yuen JA and B Chu J
Date of Hearing: 18 May 2021 Date of Judgment: 24 May 2021

Background

The Petitioner Father appealed against a judgment handed down on 10 November 2020 granting leave to the Respondent Mother to relocate with their 5-year-old daughter (A) to Singapore with effect from the uplifting of the travel ban between Hong Kong and Singapore (“the Relocation Order”).

The Relocation Order was stayed pending the appeal. Furthermore, the “travel bubble” between Hong Kong and Singapore which was scheduled to begin on 26 May 2021 was suspended again on 17 May 2021, the day before the appeal. Therefore, the terms provided in the Relocation Order, such as the generous staying access to the Father, which was predicated upon frequent travel between Singapore and Hong Kong would not be possible.

The Relocation Trial

The Mother first informed the Father of her intention to move to Singapore with A in January 2020. No agreement was reached and the Mother issued her Relocation Summons. In the Mother’s supporting affirmation, she explained that she had previously worked in the Hong Kong office of a Singapore recruitment company owned by a Mr. N. The Hong Kong office was later closed, and Mr. N continued to run the company in Singapore. The Mother’s evidence was that:

  1. She and Mr. N were very good friends and began a romantic relationship in 2019.
  2. Mr. N offered her a post in his company in Singapore and the post would offer flexibility for her to care for A.
  3. It was agreed by Mr. N that the Mother would become a shareholder in his business and that as a co-owner, she would have better job security.

It was later revealed that the Mother had a former relationship with Mr. N which lasted for around 3 years from around 2008. A had never met Mr. N in person and had only connected on WhatsApp in March 2020.

The social investigation report (SIR) recommended care and control be granted to the Mother with defined access to the Father. Importantly, the Mother’s relocation with A to Singapore was not recommended.

A single joint expert (SJE) was also appointed in the proceedings. The SJE’s opinion was that the priority should be for the Mother and Mr. N to focus on their relationship and the Mother re-establishing her career, before removing A from Hong Kong for this reason. Two options were suggested by the SJE: (1) the Father also relocate to Singapore or (2) Mr. N to come to Hong Kong one week per month, the Mother to work and stay with Mr. N two weeks per month in Singapore, and during her absence, the Father could care for A and take A to visit her maternal grandparents twice per week.

It was accepted that the Judge could not make orders along the recommendations of the SJE, unless the parties agreed. The SJE’s reasons for coming up with the different proposals was because she thought A should stay in Hong Kong unless the Father could also go to Singapore to support her and the Mother to develop the relationship with Mr. N. The SJE reported that contrary to the Mother’s evidence, A was not close to Mr. N and she had not met Mr. N’s children from his previous marriage in person.

The trial judge departed from the recommendations in the SIR and of the SJE and granted relocation to take effect from the uplifting of the travel ban between Hong Kong and Singapore.

The Appeal

The Father’s appeal was based on four main grounds, namely the trial judge erred in:

  1. Departing from the recommendations in the SIR against relocation;
  2. Failing to consider adequately the possible signs of parental alienation on the part of the Mother against the Father;
  3. Departing from the recommendation of the SJE that the priority should be for the Mother and Mr. N to focus on their relationship and the Mother re-establishing her career before removing A from Hong Kong permanently; and
  4. Failing to address A’s welfare in a holistic way by conducting a balancing exercise by reference to each parent’s options and plans.

The Court of Appeal allowed the appeal on Grounds 1, 3 and 4 and held that the trial judge erred in the exercise of her discretion to allow relocation.

Under the Guardianship of Minors Ordinance (Cap. 13), the judge had to give due consideration to all material information contained in the SIR. This included the reasons/concerns which led the social welfare officer to make her recommendation. The trial judge did not appear to have given due consideration to all of the social welfare officer’s reasons/concerns, or if she had, she ought to have given fuller explanations and reasons as to why she had taken a different view and departed from the recommendation.

Furthermore, the trial judge did not appear to have sufficiently considered the SJE’s primary recommendation that priority should be for the Mother and Mr. N to focus on their relationship and the Mother to re-establish her career before removing A from Hong Kong. The SJE’s report highlighted that the relocation could be sometime in the future, after the Mother had re-established her career. In departing from the SJE’s recommendation, the trial judge did not seem to have considered or given due consideration to the information in the SJE’s report and her concerns.

The Court of Appeal found that the Mother’s application for relocation was rushed and pre-mature. It was made during a period with the pandemic having no end in sight and normal frequent travel was not possible. The Court of Appeal did not find the Mother’s application to be realistic or well researched.

The Mother provided very little information in respect of where she proposed to live and it was unclear whether the Mother would be able to rent an apartment without first obtaining a work visa. There was also no information on the type of accommodation or facilities available, or how the rental deposit would be paid. The Court of Appeal was concerned that there were no safeguards or protective measures for A in the Relocation Order, in the event the Mother’s plan did not work out.

The Court of Appeal concluded that “it is wrong in principle for [the Mother] to proceed with an immature and uncertain relocation option involving the child simply because she needs to procure her immigration status through the child’s student visa as a springboard”.

Furthermore, whilst the Relocation Order stated that it would take effect from the “uplifting of the travel ban” between Hong Kong and Singapore, the trial judge had anticipated “either the Hong Kong red outbound travel alert has been uplifted and/or a travel corridor has been established with Singapore, which will allow the parties and A to travel frequently between the two jurisdictions”.

However, even with the “travel bubble”, quarantine requirements were still in place albeit for a shortened period. Moreover, there was no information as to whether A could travel frequently between the Hong Kong and Singapore under the “travel bubble” arrangement without being vaccinated. It was uncertain as to whether and/or when the parties and A would be able to travel frequently between the Hong Kong and Singapore.

The Court of Appeal held that by failing to include safeguards and protective measures in the Relocation Order, the trial judge had failed to sufficiently address A’s welfare and best interests in a holistic way. However, the Court of Appeal made it clear that the Mother would not be debarred from making a new application for relocation in the future when she is able to provide realistic and practical proposals.

Points to note

In relocation cases, the paramount consideration is whether the relocation is in the best interests of the child. With numerous uncertainties arising from the global pandemic, and unfortunately with no end in sight, there is a real possibility that children will not be able to see a parent if they do not live in the same jurisdiction. Policies on entry requirements and quarantine measures may change, and the added expense of quarantine may cause financial strain on families.

When considering whether to agree to relocation, parents should be mindful that it is no longer possible to easily shuttle between countries as was the case in pre-pandemic times and there is a real possibility they may be separated from their children for prolonged periods of time.

Jurisdictions

Executive Partner and Head of the Family and Divorce practice, Gall

With over 20 years in family law practice, Caroline McNally has considerable experience in complex financial disputes with substantial assets, as well as difficult children matters including relocation cases. Her international experience has equipped her to handle the most complex of cases and advise on matters with cross-jurisdictional elements.