JTMW v NAV
Judge I. Wong in Chambers
3 December 2020

Background

This was the second application by the Petitioner Father to relocate with his two children, L (a boy aged 13.5) and B (a boy nearly 11), to Denmark.

The Father was Danish and worked as a pilot. The Mother was Australian. The parties met in Sweden, married there and the Mother gave birth to their elder son L in 2007. In June 2008, the Father secured a job as a pilot in Hong Kong and the family moved here. The younger son B was born in Hong Kong.

In March 2012, the Mother petitioned for divorce. It was a contentious divorce with numerous applications including for non-removal, non-molestation and maintenance pending suit. There was a 5-day trial on custody, care and control of the Children and in February 2017 it was ordered that the Mother have indirect access to the Children by way of emails only (limited to 2 emails per week). The Children were estranged from the Mother caused by her conduct. She had also been accused of hitting the Children and was charged with and convicted of ill treatment / neglect of one of the Children.

In July 2017, the Father applied to relocate with the Children to Denmark which was unsuccessful. The Judge was not satisfied with the Father’s childcare plan that his partner would care for the Children when he was working. The Father appealed the decision but his application for leave to appeal was rejected both by the Family Court and the Court of Appeal. In April 2019 the Father took out this second relocation application.

The Father’s second relocation application

The Father wanted to start a new life with the Children in his home country, Denmark. He had obtained approval to transfer to his employer’s base in London. He proposed that he would live in Denmark while reporting for duty at Heathrow. Furthermore, the elder son L had been having some adjustment problems in school and the Father was not able to afford an international school for him in Hong Kong.

The Mother’s objections and application for dismissal

The Mother’s stance was that the Children had never lived in Denmark and it was not and had never been their home. She also feared that if the Children left Hong Kong, it would signify the end of any chance for her to reconnect with them. She proposed that if relocation was refused, the Court should immediately put in place steps for her to reconnect with the Children with the assistance of the Social Welfare Department.

The Mother also argued that if the relocation were to be allowed it should be delayed until there was strong evidence that face-to-face and electronic communication between the Children and the Mother had been solidly re-established.

On 15 September 2020, a few days before the last day of trial (which had been adjourned twice due to Covid-19), the Mother applied to have the Father’s application dismissed because of the uncertainties relating to the Covid-19 pandemic, the situation post-Brexit after 31 December 2020, the impending restructuring of the Father’s employer and the changes in immigration requirements in Denmark.

Judgment

The Mother’s application for dismissal of the Father’s relocation application was rejected. The Court noted that family cases are dynamic and the situation of the family, especially the children, would change as they grow. Although the Covid-19 pandemic worldwide situation was constantly evolving, that did not mean the Court should delay handing down its decision until matters settled down. The Court confirmed that it must consider the Father’s application on the facts and materials before it and come to the best decision it could, in all the circumstances.

The Father’s relocation application was successful. In deciding whether to grant the relocation, the Court considered what was in the best interests of the Children and conducted a holistic balancing exercise.

The Judge found that the Father’s application was genuine and that:

  • The move to the London base was a career advancement for the Father.
  • The Father, his partner and the Children had been returning to Denmark for summer breaks since at least 2015.
  • The relocation would allow the Father to have support from his extended family. The Children would also have a normal family life surrounded by extended family members and be brought up in their own culture.
  • Although the Mother regarded the Father’s relocation as a means to further alienate her from the Children, she was only having indirect access by email and this was caused by her own conduct.

The Court held that there were bound to be uncertainties for the parties. The question was whether the relocation was well planned and considered so that the major adverse uncertainties were foreseen, avoided or eradicated as much as possible. The Court considered that the Father’s plan was well thought out and practical and operated in the Children’s best interests.

The Court found that whilst the Mother’s opposition was motivated by her genuine concern for the Children, her relationship with the Children would be no worse after relocation. On the contrary, there may be a chance for improvement if the Children could relocate and it was hopeful that with the passage of time there would be less resentment towards the Mother.

The Mother raised concerns over the number of Covid-19 cases in Denmark, which were far higher than in Hong Kong. The Court noted that “Denmark and Hong Kong, and for that matter, the world, have been facing the challenge posed by [the] Covid-19 pandemic. In different countries and at different times there have been waves of surges of cases. At some of the time Hong Kong has met with success and the same can be said for other countries. Things should not be mired in stalemate simply because of the pandemic.” The Court considered the long-term best interest of the Children, and the focus was not on infection rates alone.

Comments

In deciding whether it is in a child’s best interest to relocate from Hong Kong, the Covid-19 pandemic and the uncertainties caused by it will be one of the factors considered by the Court. However, this judgment shows that the uncertainties alone will not be sufficient to refuse to allow a parent to permanently leave Hong Kong with their children when the relocating parent’s application is genuine and well thought out insofar as possible in all the circumstances.

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.

Associate, Gall