Introduction

In the recent Court of Appeal (“Court”) case YSYM v LHB [2020] HKCA 586, the Court reiterates the importance of taking into account children’s wishes in a relocation application, especially for young adolescents who are capable of making their own rational choices.

Background

In this case, the Petitioner mother (“Mother”) and the Respondent father (“Father”) have 2 sons, aged 13 and 14 at the time of the Court’s judgment (the “Children”).  The parties started cohabitation in 2001 and registered their marriage in 2006.

In May 2011, the Father moved out of the matrimonial home, and the Mother petitioned for divorce two months later. On 1 November 2012, Judge Bruno Chan granted sole custody, care and control of the Children to the Mother with defined access to the Father. At present, the Father has formed a new relationship and lives with his girlfriend and their four-year-old daughter.

In 2019, the Mother applied to remove the Children from Hong Kong to Canada for the purpose of education (the “Application”). The Application was refused by Deputy District Judge J Chow (“Judge Chow”) on 25 February 2020. The Mother eventually took the Application to the Court of Appeal.

The Law

As discussed in BA v BL (Child Relocation) [2019] 4 HKLRD 23, the paramount consideration in a relocation application is whether the relocation is in the best interests of the child. The landmark case Payne v Payne [2001] EWCA Civ 166, which has been adopted by Hong Kong courts, identifies a number of factors:

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

2.        Is the mother’s application realistic and founded on practical proposals both well researched and investigated?

3.        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?

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

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

6.        The review of the child’s welfare as the paramount consideration, directed by the statutory checklist in so far as appropriate.

Judgment in the Family Court

In the Family Court, Judge Chow refused the Mother’s relocation application on the following findings:

1.        The Mother’s admission of her intention to apply for permanent residency reflected her motive to bring the Children with her and to exclude the Father permanently.

2.        The removal plan was inappropriate, not well researched nor investigated.

3.        The Father’s concerns about the Children’s education were relevant and genuine.

4.        The refusal of the Application would have no impact on the Mother since she was determined to start a new life in Vancouver.

5.        Should the Application be granted, it is more likely than not that the Father’s access would be worsened.

6.        In respect of the Children’s welfare, the Children’s view to stay with the Mother and study in Vancouver was well noted, but there were other more imperative factors to be considered. Further, the recommendation from the Social Welfare Officer (“SWO”) which supported the Application was not adopted on the grounds that the SWO might not be able to consider the education plan to the fullest extent and he failed to explore the possible situation where the Mother’s working visa is being revoked.

Decision in the Court of Appeal

On appeal, the Court held that Judge Chow’s judgment was vitiated by a number of errors, and allowed the Mother's appeal.

First, and most importantly, Judge Chow failed to give any real effect to the Children’s strong wishes. In addressing this point, the Court referred to Re R (Residence Order) [2010] 1 FLR 509, which quoted The Experts’ Court Report [2000] Fam Law 615:

“…As a rough rule we would see these as needing to be taken account of at any age; above 10 we see these as carrying considerable weight with 6-10 as an intermediate stage and at under 6 as often indistinguishable in many ways from the wishes of the main carer (assuming normal development).”

The Court took the view that the Children are adolescents capable of forming and articulating their views on the pursuit of their own education. As such, Judge Chow erred in discounting their strong wishes to study overseas.

Second, Judge Chow fell into error in setting unrealistic standards for a relocation plan which the Mother is presently unable to meet. For instance, Judge Chow expressed “serious concern” of the Mother taking the Children with her without an application for a permanent visa, something which the Mother is unable to do until she has lived in Canada for a specified period.

Third, Judge Chow erred in declining to accept the SWO’s recommendation. The Court opined that the Family Court should be circumspect in departing from SWO’s recommendation without cogent basis.

Lastly, the Court observed that Judge Chow made contradictory findings about the impact of the refusal of the application on the Mother. 

Conclusion

The present case offers useful guidance as to factors concerning relocation application. However, one should bear in mind that the nature of family proceedings is highly fact sensitive. It would be prudent for a party to carefully assess the particular circumstances and consult legal advice whenever necessary.