AN LW v. AW nee AC

FCJA 1081/2011

[2019] HKFC 320

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 1081 OF 2011

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J U D G M E N T

(Relocation, variation of care and control and access)

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Introduction

1.  This is the 1^st Applicant father’s application for leave to permanently remove the two children of the family out of the jurisdiction of Hong Kong in order to reside with him in Michigan, USA. He originally indicated his wish to relocate in his application dated the 25 April 2016 which states as follows:

1.  The 1^st Applicant do have leave to remove the children of the family, namely KLW and RLW from the jurisdiction of the court of Hong Kong permanently for the purpose of education and living.

2.  The consent of the 2^nd Applicant be dispensed with.

This was followed by an updated summons dated the 8 February 2019, which clarified the father’s position for the purposes of the trial. This states that:

1.   The 1^st Applicant do have leave to remove the two children of the family namely, KLW, a girl who was born on the XX day of February 2003 and RLW, a boy who was born on the XX day of January 2007 (collectively the “Children”) permanently out of jurisdiction of Hong Kong for the purpose of relocation to the U.S.

2.   Variation of the Order dated the 16^th day of August 2013 to the extent that the 1^st Applicant shall have the care and control of the Children with the following access to the 2nd Applicant:-

a.   The 2nd Applicant shall have generous internet access to the Children at her will via telephone or video call via internet provided that those shall not affect the Children’s sleeping time and school hours;

b.   The 2^nd Applicant shall have 2 months of access in Hong Kong during the summer holidays and half of the X’mas holidays of the Children in Hong Kong;

c.   In the event of the 2^nd Applicant traveling to U.S., she shall have priority access to the Children for the duration of her stay and staying access over the weekend when the Children have no other school commitments.

3.   Cost reserved. The parties’ own costs be taxed in accordance with the Legal Aid Regulations.

2.  The children are American citizens. They were born in America and they hold American passports. The father is an American Caucasian and the mother is Hong Kong Chinese. The mother is also an American passport holder and she also has the ability to live and work in the United States should she so wish. The children have lived in Hong Kong with the mother since 2013 and I am told that they will be entitled to Hong Kong permanent residency from May 2020. They are currently in Hong Kong on dependant visas.

3.  In effect then, this is an application by a parent, who is not currently the caretaking parent, for leave to remove the two children of the family out of Hong Kong in order to live in Michigan, USA, which is where he is currently living and where most of his extended family also reside. This application is resisted by the mother, who wishes the status quo to remain in place.

4.  This application is made against a back drop of intense conflict. As will be seen from the background set out inter alia in paragraphs 12 - 14 below, there have been ongoing issues with respect to the children’s care and access by the non-caretaking parent for most of their lives. This culminated with the father taking the children to the United States for a court ordered holiday in the summer of 2017, during the middle of these proceedings and then failing to return them in contravention of his undertaking. He said that he had health and safety concerns and in particular he maintained that the children had been living in very poor conditions in Hong Kong and that R had had suicidal thoughts. Hague proceedings followed and the children were eventually ordered to return by a court in Michigan and they did so on the 8 January 2018.

5.  There continue to be issues with respect, inter alia to the mother’s ability to provide an appropriate home for the children in Hong Kong and to properly care for them, including her ability to support them financially. There are related issues concerning the relationship between the children and the other adults in the mother’s household and fears that they are or were “latch key kids”. Although the mother now says that she has employed a domestic helper, the concern is that this is merely “litigation window dressing” and that the situation will soon revert to how it was before, once these proceedings have been concluded. 

6.  There have also been ongoing problems with respect to access and even post trial the court has received letters from each sides respective solicitors in that respect.

7.  Further, during the first tranche of the trial an issue arose with respect to R being bullied at school and a rather disturbing video was produced of him being hit by a boy on the school bus. Both parents went from the court to the school in order to clarify the situation. I was subsequently told that there was no longer a problem and that the situation has seemingly been resolved satisfactorily.

8.  Notwithstanding that there have been concerns about each child’s mental health. R is said to have been very depressed and to have considered self-harm. However, when I asked the mother about this in the witness box I was told that the only therapeutic support that he is currently receiving is provided by the school. It is not clear how comprehensive this is. There have also been concerns about K during the course of the proceedings and this led ultimately to the court appointing Ms L as a Single Joint Expert to

...determine whether K has a learning difficulty, including ADHD, ADD or other stress-related illness or issues that [Ms L] might consider relevant for the upcoming hearing ...           

9.  Ms L reported that there were no academic concerns with respect to K and that she would be able to cope with studying either in Hong Kong or in the States. She recommended that the parties learn to communicate openly and that either a Parental Co ordinator or a mediator be appointed and that both children have some counselling. She was particularly concerned about R and suggested that he have intensive therapy twice a week.

10.  In essence it is the mother’s case that despite some problems with her care arrangements, which she is doing her best to resolve, that it would be in the best interests of the children for the status quo to be maintained and for them to remain in Hong Kong. If I am not with her on this point, then she asks that the children remain in Hong Kong until at least May 2020 when they will become eligible for Hong Kong permanent I.D.

11.  The father for his part says that it is in the best interests of the children if they now relocate as quickly as possible. He had originally been of the view that they should relocate at the end of the academic year. However, his position changed after he heard what the children said to me directly.

Background to the marriage and the litigation

12.  Counsel for the 2^nd Applicant mother has set out the background to the parties’ marriage and this litigation in her opening as follows:

4.   The 1^st Applicant [father] was born and brought up in Michigan, the U.S., while the 2^nd Applicant [mother] was born in Hong Kong.  After receiving her primary and secondary education in Hong Kong, the 2^nd Applicant furthered her studies in Michigan, the U.S., where she acquainted with the 1^st Applicant. The parties were married in 1998 and the family moved to the Mainland China in 2007, where both parties worked as English teachers. The family relocated to Hong Kong in or around 2009 to 2010.

5.   The 1^st and 2nd Applicants divorced upon consent on 6 July 2011.  Pursuant to the order granted by HHJ Melloy on 29 June 2011, joint custody of the Children was granted with care and control to the 1^st Applicant [father]and reasonable access to the 2^nd Applicant [mother] [A/185-186].

6.   The 1^st Applicant then resided with the Children in the Mainland China from 2011 to 2013.  On 16 August 2013, by virtue of an order granted by HHJ Melloy upon the consent of the parties, care and control of the Children was varied to the 2^nd Applicant with reasonable access to the 1^st Applicant. The 1^st Applicant was also ordered to pay the 2^nd Applicant periodical payments for the Children at the rate of US$50 per child per month until their 18^th birthday or cessation of full-time education, whichever is the later or until further order [A/191-192].

7.   Since the Children’s relocation to Hong Kong in 2013, the 2^nd Applicant enrolled the Children to the X Academy in Hong Kong, an IB accredited school, which provides 12-year through-train primary and secondary education.  K is currently attending Grade 9 while R is attending Grade 5. The 1^st Applicant relocated back to the U.S. since 2014.

8.   By the order granted by HHJ Melloy upon consent of the parties on 3 March 2016, the 1^st Applicant was granted defined access to the Children as follows: -

a.  The 1^st Applicant has international phone calls with the Children only, on a regular basis, weekly, on every Tuesday from 8 p.m. to 8:15 p.m., Hong Kong time, for a minimum of 1 time for not more than 15 minutes;

b.  The 1^st Applicant has video conversations with the Children only, on a regular basis, on every Saturday from 10:00 a.m. to 11:30 a.m. (i.e. K from 10:00 a.m. to 10:30 a.m. and R from 10:30 a.m. to 11:00 a.m.) Hong Kong time.

[A/193-194]

9.   On 26 May 2017, HHJ Melloy granted an order to the 1st Applicant for the temporary removal of the Children out of the jurisdiction of Hong Kong from 15 July 2017 to 23 August 2017 upon the 1^st Applicant’s undertaking to return the Children to the jurisdiction of Hong Kong at the conclusion of holiday or when called upon to do so. Further, the 1^st Applicant shall be solely responsible for the expenses of and incidental to the Children’s visit to the U.S. including round trip flight tickets (“the Temporary Removal Order”)[A/105,199-201]. Accordingly, the Children left for the U.S. on 15 July 2017.

10. However, in breach of the Temporary Removal Order and the 1^st Applicant’s own undertaking, the 1^st Applicant failed and refused to return the Children on 23 August 2017 and informed the 2^nd Applicant of his intention to retain the Children in the U.S. [B/762].

11. As such, the 2^nd Applicant obtained an order granted by HHJ Melloy on 25 September 2017 for the 1^st Applicant to return the Children to the jurisdiction of Hong Kong forthwith [A/202].

12. Given the 1^st Applicant still failed and refused to return the Children, the 2^nd Applicant commenced the Hague Convention proceedings and obtained an order from the 17^th Circuit Court of the State of Michigan on 8 December 2017 for the return of the Children to Hong Kong [B/754-757].  It was only until 8 January 2018 when the Children were returned to Hong Kong. The 1^st Applicant had thus unlawfully retained the Children in the U.S. for a period of more than 4 months.

13. The 1^st Applicant has respectively on 24 September 2015 and 25 April 2016, taken out Summons and Notice of Application for leave to remove the children from the jurisdiction [A/l, 47-48].

14. From 2016 to 2018, the following reports were called for:-

(1)  Social Investigation Report dated 18 February 2016 by Ms. Y, Social Investigation Officer[A/206-216];

(2)  International Social Investigation Report dated 22 August 2016 (“the 1^st ISIR”)[A/217-269];

(3)  Updated Social Investigation Report dated 4 October 2016 by Ms. Y[A/270-277];

(4)  International Social Investigation Report dated June 2018 (“the 2^nd·ISIR”)[A/287-384];

(5)  Social Investigation Report dated 7 June 2018 by Mr. K, Social Investigation Officer[A/278-286];

(6)  Single Joint Expert Report by Ms. L, Registered Child Psychologist, dated 22 November 2018[A/395-438].

15. In relation to the affirmations filed by both parties, the 1^st Applicant has filed a total of 13 affirmations while the 2^nd Applicant has filed a total of 6 affirmations.

Each parties case

The father’s case

13.  It is the father’s case, and this does not appear to be disputed, that he was originally the care taking parent and that the children were in his primary care from 2011 when the parties divorced, until 2013. He was living and working in China at the time and he would bring the children to Hong Kong about twice a year to see the mother. It is his case that when he agreed that the children should live with the mother, this was on the premise that eventually they would relocate back to the States to live with him. Consequently, he agreed to vary the original order dated the 29 June 2011 and on the 16 August 2013 it was ordered by consent that care and control of the children would vest in the mother. In 2014 the father relocated back to the States. He then began to experience significant difficulties with access. In 2015 he flew back to Hong Kong and issued his first summons for access. At that time, he complained inter alia that he didn’t know where the children were living and that they had been moved to an unknown address. It later transpired that the children had moved from Yuen Long to a property in which other members of their maternal family lived in Jordan. Other difficulties ensued with respect to K’s mental health. The father also continued to experience difficulties with respect to access. In particular, the mother was fiercely opposed to the children visiting the father and his family in the US.

The mother’s case

14.  It is the mother’s case that she took the children back in 2013 because they had not been well looked after by the father. She maintains that they are well looked after now and she does not accept the criticisms levelled against her with respect to access or generally. She states that she has never frustrated the father’s remote access and that it was reasonable of her to object to the children going to the States.

Meeting the children

15.  It is then against this background that I met with the children so that they might express their views to me directly. I met with them on the 6 September. I should say at the outset that I was impressed by both children but particularly by K, who was keen to speak to me on her own notwithstanding the fact that she was very aware that what she said would be relayed to both of her parents. R meanwhile was reluctant to divulge anything too much and understandably perhaps did not elect to see me individually. K, however, had clearly given a lot of thought to the current situation and the options that were open to her. She confirmed that both children wished to stick together come what may. Her concern with respect to a potential move to the States centred on the schooling and she made it very clear that she would prefer to go to an IB school. She said inter alia as follows:

K:  Yes. If I were to go back to America, I have told my dad before, and my dad’s family and my grandma, that if I move back I would strongly prefer or only go back if I could continue my IB because it’s easier to go from one IB school to another because IB curriculums are constant, but then say if I go back to an American public school, that would be really difficult since I have no credits. I will have to start from freshman year which means that I would most likely be two years behind.

16.  She is currently studying for the IB diploma and is taking History, English and Chinese at a higher level and Business, Physics and Math at a lower level.

17.  It is interesting that this point had not come up in any of the affidavits, or in any of the reports, or indeed during the trial. It was however pivotal as far as K was concerned. I have since learnt that it would be possible for both children to go to a public school that offers an IB curriculum close to the father’s home in Michigan. To that end it is of note that K did not wish to go back to the school that she had attended for a short while in the Autumn of 2017.

18.  In addition, K was very clear that she hates her current living conditions. As will be seen she is currently living with the mother and R with her paternal Uncles in the flat in Jordan. In particular, she has a strong aversion to living with the two Uncles, who she is not close to and who she says she has no relationship with. It is of note that she works part time as a waitress which means that she sometimes comes home at odd times and has to rely on her Uncles to let her into the flat. This was also clearly a problem for her.

19.  Neither child expressed a clear preference to either staying in Hong Kong or going to the States. R said that he was ok as long as he had food and the internet!! It was clear that K has a close relationship with her paternal relatives, whereas R was only close to one of his Grandmother’s and one of his Grandfather’s (both grandparents have remarried and both live close by to the father’s home). R was also more ambivalent about his maternal Uncles and said that he got on with one but not the other.      

What then are the main issues to be considered?

20.  It is then against this broad background that the court is asked to consider the following issues:

Should permission be given for K and R to relocate to Michigan, USA with their father?

In the event that permission is granted what orders should the court make for custody, care and control and access?

Should any other orders be made?

Overall what does the court consider to be in the best interests of K and R?   

Each party’s proposal

Father’s proposal

21.  The father proposes as follows:

1.   In the event the 1^st Applicant shall have care and control of the Children with relocation to the US, the 1^st Applicant proposes the following access to the 2^nd Applicant: -

a.   The 2^nd Applicant shall have generous internet access to the Children at her will via telephone or video call via internet provided that those shall not affect the Children’s sleeping time and school hours;

b.   The 2^nd Applicant shall have, every year, 2 months of access in Hong Kong during the summer holidays and 2 weeks of access in Hong Kong during the Christmas holidays of the Children and the 1^st Applicant’s shall be solely responsible for paying and arranging for flight and travel expenses; and

c.   In the event of the 2^nd Applicant travelling to the U.S., she shall have priority access to the Children for the duration of her stay and staying access over the weekend when the Children have no other school commitments.

2.   In the event the care and control of the Children remains with the 2^nd Applicant with no relocation, the 1^st Applicant proposes he is to have the following access:-

a.   The 1^st Applicant shall have generous internet access to K at her will via telephone or video call via internet;

b.   The 1^st Applicant shall have regular internet access with R arranged and facilitated by the 2^nd Applicant for no less than twice a week and 15 minutes each time;

c.   The 1^st Applicant shall, every year, have 2 months of access in the U.S. during the summer holidays and 2 weeks of access in the U.S. during the Christmas holidays of the Children and the 2^nd Applicant’s shall be solely responsible for paying and arranging for flight and travel expenses;

d.   The 1^st Applicant shall have 1 week of holiday access during Easter school holidays, to be arranged to meet the Children outside Hong Kong for a short overseas holiday trip; and 

e.   In the event of the 1^st Applicant travelling to Hong Kong, he shall have priority access to the Children for the duration of his stay and staying access over the weekend when the Children have no other school commitments.

Mother’s proposal

22.  The mother for her part made the following proposal:

No relocation - Children remain in Hong Kong with Mother

1.   In the event that there is no relocation, i.e. the Children remain in Hong Kong with Mother, Mother proposes the following access proposal: -

a.   Father shall have unlimited internet access, including telephone or video calls, at his will to the Children, provided that the access sessions shall not affect the Children’s school hours, extra-curricular activities and sleeping time;

b.   In the event that Father is not able to reach R for more than 72 hours Father shall notify Mother and Mother shall arrange and facilitate internet access, via telephone or video call, with R within 72 hours following Father’s notification;

c.   Father shall have priority access for the duration of his stay and reasonable staying access with the Children when he is in Hong Kong provided that such staying access do not occur immediately before a school day and provided that the Children do not have other school commitments. Father shall inform Mother of his travel plan to Hong Kong i.e. date of arrival and departure, at least one month before his arrival and access plan, i.e. on which date and/or which period he intends to have staying access to the Children as well as location for such access at least one week prior to his arrival to Hong Kong;

d.   Father shall have 1 month of staying access in the U.S. during the summer holidays and 10 days of access in the U.S. during the Children’s school Christmas holidays. Mother shall be solely responsible for arranging and paying for flight and travel expenses.*

*  Mother wishes for staying access to take place after June 2020 as the Children will be obtaining their Hong Kong Permanent residency in May 2020 to avoid any potential risks of the Children not being able to return to Hong Kong subsequent to the staying access.

Relocation granted一Children relocate to the U.S. to stay with Father

2.   In the event that Father’s relocation application is granted, i.e. the Children relocate to the U.S. with care and control to Father, Mother proposes the following access proposal: -

a.   Mother shall have unlimited internet access, including telephone or video calls, at her will to the Children;

b.   In the event that Mother is not able to reach R for more than 72 hours, Mother shall notify Father and Father shall arrange and facilitate internet access, via telephone or video call, with R within 72 hours following mother’s notification;

c.   Mother shall have priority access to the Children for the duration of her stay and reasonable staying access with the Children when she is in the U.S. provided that such staying access do not occur immediately before a school day and provided that the Children do not have other school commitments:

d.   Mother shall have 1 month of staying access in Hong Kong during summer holidays and 10 days of access in Hong Kong during the Children’s school Christmas or Easter holidays. Father shall be solely responsible for arranging and paying for flights and travel expenses.

Relocation

The law

23.  In the most recent Court of Appeal decision on relocation, BA v BL, (unrep. CACV 18/2018, on appeal from FCMC 612 of 2015, date of judgment, 25 July 2019), The Hon Mr Peter Cheung JA helpfully made the following comments with respect to a judgment from this court, which was concerned inter alia with an application made by a mother, who was not at that time the primary caretaking parent. He said inter alia as follows:

4.14    In Hong Kong the paramount consideration is whether the relocation is in the best interests of the child.  Hence whether a relocation application is made by a primary carer or a non primary carer does not give rise to any presumption in favour of or against the applicant. There may be myriad reasons why such a parent applies for the relocation of the child.  Ultimately it is one of the factors to be considered in the overall assessment whether the relocation is in the best interests of the child and the weight to be attached to this factor depends on the facts of the case.  The value of Payne is that it ‘identifies a number of factors which will or may be relevant in a relocation case, explains their importance to the welfare of the child, and suggests helpful disciplines to ensure that the proper matters are considered in reaching a decision but it does not dictate the outcome of a case’ per Black LJ at [144] in K v K. In my view Payne is not to be jettisoned.  The relevant factors provide a structured framework in which the appraisal is to be made holistically. 

4.15   I have dealt with the situation of a single parent being the primary carer.  In respect of the situation where the child’s care is shared between the parents, I find the view of Black LJ in K v K to be helpful in that cases should not become bogged down with arguments as to the label to be attached to the way in which the particular parents had provided for the care of their children.

“145. ....The ways in which parents provide for the care of their children are, and should be, infinitely varied. In the best of cases they are flexible and responsive to the needs of the children over time. When a relocation application falls to be determined, all of the facts need to be considered.’

4.16 In this case the Judge followed the Payne approach and discussed the various relevant factors but her ultimate decision was based on the best interests of the children.

24.  Although the case was referred back to this court for retrial, this was because the mother’s situation had changed significantly. She had re partnered, moved across the country and had a further child. However, the approach taken by the court on that occasion was seemingly approved of. Consequently, I intend to take the same approach in this case.

25.  Reference may be made to the original judgment where I stated inter alia as follows:

15.  In a case recently handed down by this court namely Re: JMFC also known as C, J v DJH dated the 20 September 2017 unreported, I attempted to analyze the current law on relocation where an application is being made, arguably, by the non caretaking parent. The factual matrix in that case was very different from the one that is currently before me but nonetheless it seems to me that the law remains the same. On that occasion I said as follows:

The law

    16. Counsel for the father very helpfully referred the court to the Court of Appeal decision in England and Wales, Re: F (Relocation) [2013] 1 FLR 645 (CA), which dealt, inter alia with the appropriate way to approach an application to relocate by a non-caretaking parent. In that case it was held inter alia that:

(2)   ... The judge, in his reasoning, had asked himself if this had been a case to which Payne v Payne applied.  He then proceeded to take into account the guidelines from that case.  Having considered the discipline outlined by Thorpe LJ, he then turned to an investigation and evaluation of the child’s best interests having regard to the welfare checklist and came to his overall conclusion (see para [48]).

(3)   Although this was not a case where the application was being made by the primary carer, the judge was entitled to have regard to Thorpe LJ’s ‘discipline’ as set out at para [40] of Payne v Payne which is not confined to cases in which the applicant is the primary carer.  He correctly appreciated that the case had to be decided by reference to the child’s best interests and that is what he did (see paras [45], [49]).

(4)   The judge carefully took into account the child’s current circumstances in this country, the quality of his father’s care of him and the father’s own plans, wishes and feelings.  There was nothing which began to suggest that he started off with any presumption in favour of the mother’s claim.  He acknowledged that the father was the primary carer and recognised the importance the father was attaching to the argument based upon the status quo.  He gave appropriate weight to both points, whilst correctly appreciating that neither could be decisive.  There was no sustainable basis for any complaint that the judge either took into account irrelevant factors or failed to take into account any relevant factors.  Nor was there any sustainable basis for a complaint that he erred either in the weight he chose to attach to the various factors he had to take into account or in his evaluative decision as to where the ultimate balance fell.  That being so there was no proper basis upon which the Court of Appeal could intervene (see para [52]).

(5)   The present case was a good example of what could happen if appropriate heed was not paid to the warning given by Black LJ in K v K (Relocation: Shared Care Arrangement) that cases should not become bogged down with arguments about whether this was ‘a Payne case’ or ‘a Re Y case’.  In the event the judge did not fall into the error of getting bogged down with arguments about whether the time spent with each parent made it a particular type of case.  However, the prominence given in his judgment to ‘the Payne guidelines’, no doubt reflecting the prominence they had been given in the course of argument, led to the father being given the permission to appeal which otherwise, it may be, would have been refused (see para [59]).

17.  This is very helpful. I agree that, as in Re: F, it must be appropriate to take into account the guidance provided by Thorpe LJ in the Payne guidelines, when evaluating what is in the best interests of the children, even when as here the application to relocate is arguably made by a non- caretaking parent. For the avoidance of doubt the Payne protocol states as follows:

(40).  ... To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother’s proposals are necessarily compatible with the child’s welfare I would suggest the following discipline as a prelude to conclusion:

i.  Pose the question: 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, by which I mean, 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 insofar as appropriate.

In suggesting such a discipline I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological well being of the primary carer.  In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor.”

18.  As indicated to the parties in the Children’s Dispute Resolution, when faced with a similar situation in the past I have approached the matter as follows: (see X also known as XX v Y (FCMC 15416/2010 unreported, 25 January 2013): 

The protocol identified by Lord Justice Thorpe in Payne and confirmed as the appropriate approach in Hong Kong in SMM v TWM (Child Relocation) [2010] HKLRD 37, will continue to be adopted with some modifications. The same questions will be raised but will be asked of both parents. Each parent’s stance will then be compared when considering overall what is in the best interests of each individual child.

I intend to adopt the same approach here.

16.  I then proceeded to set out the questions to be posed to both parties. In this instance it seems to me that the questions to be posed are as follows:

a)  Is the mother’s application to relocate to H, near Miami, USA, genuine in the sense that it is not motivated by some selfish desire to exclude the father from the children’s life? Is the mother’s application realistic i.e. are her proposals practical and both well researched and investigated?

I will ask then ask the father:

b)   Is the father’s opposition to the mother’s plan genuine? Does he wish to exclude the mother from the children’s lives? Are the father’s proposals, if the children stay in Hong Kong, realistic? i.e. are his proposals practical and both well researched and investigated?

It may be that either side’s case will fail at this point. However, it is more likely that the court will then go on to consider whether or not.

c)   The father’s opposition to the mother’s application is motivated by genuine concern for the future of the children’s welfare or it is driven by some ulterior motive?

d)   Likewise whether the mother’s desire to leave is also motivated by a genuine concern for the children’s welfare or by some ulterior motive?

I will then ask:

e) What would be the extent of the detriment to the father and his future relationship with the children were the application granted?  To what extent would that be offset by an extension of the children’s relationships with the maternal family?

f)   What would be the extent of the detriment to the mother and her future relationship with the children if the application is not granted?

g) What would be the impact on the father if the application were approved?

h) What would be the impact on the mother if the application were rejected?

17.  Overall I will then consider what will be in the best interests of the children. In doing so, consideration will be given to the Social Welfare Reports and the International Social Welfare Report. After a decision has been made with respect to the relocation, consideration will then be given to the practicalities that arise out of that decision and in particular how the children’s time shall be divided between their parents going forward. An order will then be made that most closely reflects the practical arrangements identified.

I intend to follow the same basic protocol in this instance.

Custody, care and control and access

26.  In so far as the formal orders for custody and care and control and access are concerned, it is of note that the court is only concerned with care and control and access, as there is already an order in place for joint custody and neither party has sought to vary that order. In any event the law governing applications concerning children’s orders in Hong Kong can be found in the Matrimonial Proceedings and Property Ordinance, Cap 192 and the Guardianship of Minors Ordinance, Cap 13. Section 19 of the MPPO states as follows:

(1) The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18-

(Amended 69 of 1997 s. 28)

(a)  in any proceedings for divorce, nullity of marriage or judicial separation, before, by or after the final decree;

27.  The general principles governing such applications are set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13, which says that:

(1)   In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property-

(a)  in any proceedings before any court (whether or not a court as defined in section 2) the court -

(i)  shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to -

(A)   the wishes of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

(B)   any material information including any report of the Director of Social Welfare available to the court at the hearing;

28.  In addition reference may be made to the so called “welfare checklist”. Although there is currently no statutory checklist in Hong Kong, as exists in other common law jurisdictions, there are a number of factors, which generally speaking need to be taken into account or considered, when determining issues relating to children or young people. For ease of reference I have listed them below. Some of these mirror the checklist to be found in the English Children Act 1989. I should say at the outset that this list is not meant to be an exhaustive list, but is simply a useful guide when considering issues relating inter alia to care and control and access and the best interests of children of generally.  The checklist includes the following factors:

(a)  the ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding);

(b)  the child’s physical, emotional and educational needs;

(c)  the nature of the relationship of the child with each of the child’s parents and with other persons;

(d)  The likely effect on the child of any change in the child’s circumstances;

(e)  The child’s age, maturity sex, social and cultural background and any other characteristics which the court considers relevant;

(f)  The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

(g)  Any harm which the child has suffered or is at risk of suffering;

(h)  Any family violence involving the child or a member of the child’s family;

(i)  How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(j)  (a broader formulation along the lines of) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(k)  The range of powers available to the court under this Ordinance in the proceedings in question.

(l)  Any other fact or circumstance that the court thinks is relevant.”

Many of these factors are relevant here. However, I do not intend to go through them point by point, although I shall make general reference to some of the most relevant ones in my conclusion.

Discussion

29.  I shall now turn to consider the issues, the law and the parties evidence as set out in their affidavits and as given orally by them during the hearing.  I have also heard evidence from the two Social Welfare Officer’s namely Mr K, who produced an updated report dated the 7 June 2018 and Ms Y who produced two earlier reports dated 18 February 2016 and 4 October 2016. There were also two International Social Welfare Reports, the first dated the 22 August 2016 and the second dated June 2018. However, the author of those reports was not cross examined. Similarly, the parties did not elect to cross examine Ms L, who produced the report on K dated the 22 November 2018.  In addition, the court heard briefly from both of the paternal Uncles, who reside with the mother and the children in a property that I believe was originally owned by the paternal grandfather.    

The evidence from the experts

The reports

Social Welfare Reports

30.  Recommendations made to the court in social welfare reports, although not binding are considered persuasive. In the event that the recommendations are not followed then reasons should be given for that in the judgment.  

Social Welfare reports

Updated Social Welfare report dated the 7 June 2018

31.  It would be fair to say that Mr. K struggled a little with the cross examination process and seemed somewhat confused about the nature of the application itself. This may have been because of the way in which it had been originally drafted (see paragraph 1 above). In any event he eventually conceded that he agreed to the permanent relocation notwithstanding the fact that in his Conclusions and Recommendations he said as follows:

28. Hence, it seemed that there were no strong reasons for changing the existing caring arrangement, as stability and less disruption in the children’s life contribute positively to the interests of the children. Nevertheless, the views of the children should be given more weight in the consideration. There was no evidence to suggest that the children had been coached or indoctrinated to share their views on relocation issue. While K would like to live with R and did not have strong preference to live in Hong Kong or in the USA, R appeared to enjoy school life in the USA more than in Hong Kong, although he did not explicitly state so.  Under such circumstances, considering the education arrangement for the children while both parents are able to shoulder the child care responsibility to nurture the children, I am inclined to recommending temporary removal for K and R to study in the USA, in which case it should be arranged for them to return to Hong Kong during the summer holidays and during other long school holidays as appropriate.

As will be seen I basically agree with this recommendation save that it should be expressed as permanent relocation.

Earlier Social Welfare Reports dated the 18 February 2016 and the 4 October 2016.

32.  The earlier reports were of less relevance given that Ms Y was only really concerned about the access arrangements at that time and they are now very out of date in any event. Mr Li, for the father did not even elect to cross examine Ms Y. In such circumstances I do not intend to attach very much weight to either of these earlier reports.

33.  However, it is of note that neither of the social welfare officers raised any concerns about the mother’s living conditions, neither were they shown the pictures allegedly taken of the mother’s home by R in early 2018, which show very poor and unhygienic conditions in the flat at that time. In any event I am told that the flat has subsequently been renovated. Regardless, the father did not seriously pursue this point at trial, although it had been a matter of considerable concern in 2017.  

Psychologists report dated the 22 November 2018

34.  As indicated about Ms. L provided a Single Joint Expert’s report on K’s mental health. As I have said neither party elected to call Ms L to be cross examined and therefore her observations and recommendations remain unchallenged. Nevertheless, she did make a number of interesting and important comments about the parties and this litigation including inter alia as set out below. Although time has moved on since this report was filed and Ms L refers to some matters that are of less relevance now, many of her observations still remain valid. I should add that although I do not agree 100% with everything that is said I have nevertheless decided to reproduce this part of her report in full, as the basic tenure of her comments remains as insightful now as they did then. 

Discussion

299.  This is a rather unusual situation, as based on my experience, the mother would usually see more issues and raise more concerns than the father.

300.  There is no denying that Mr. W could offer a better living environment for the children, which is more likely to be suitable for R. He would be more attentive to the children as his working hours are more flexible and the cost of living is lower in the United States. The US might also offer a better learning environment for the children, and Mr. W certainly could offer better living conditions simply because the cost of living is a lot lower in the US than in Hong Kong.

301.  Mr. W could also offer better support with extended family, and K undoubtedly has a close relationship with her paternal grandmother. However, I am concerned over his ability to co-parent with Madam W.

302.  His failure to send the children back after their first long summer holiday with him raised a red flag because of his disregard of Madam W’s parental rights and his unwillingness to work as a co-parent.  The allegations that he raised seemed unnecessary and directly put the children in the middle of the conflict.

303.  Mr. W has only been with his current company since March 2018, and raising two children on his own could put a strain on his work performance that he might not have anticipated.

304.  In addition, blatantly ignoring a court order seems to indicate his lack of regard for the law and the right of Madam W. If the children do end up in the US, it would be hard to imagine him acknowledging the agreement and law in Hong Kong.

305.  Some of his irrational actions may have possibly been caused by his need to see his children as there is no doubt Madam W was showing signs of gatekeeping behaviour and also not encouraging access or allowing the children to see him in the US. However, he seems to focus on his need to be reunited with the children and not the needs of the children. Perhaps he feels that he has the right to raise concerns on social media and raise funding to fight for his children to be relocated, but he doesn’t seem to consider the feelings of the children, in particular K, as she clearly knows about the crowdfunding and the many pictures and comments he posted online.

306.  I have no doubt of Madam W’s love for the children and that she is doing her best to raise two children with her limited resources. Despite her working at school and more understanding of her needs as a single mother, she does need to work long hours, and that puts the children at risk.  Both K and R need more guidance and attention, they also need more planned activities for their development.

307.  Madam W certainly was creative in her design to provide space and privacy for the children, but their need for privacy will only increase in the next few years.  It will be hard for them to share the same room.

308.  It seems to me that as the children are with Madam W, she does not see the need to co-parent with Mr. W. This could be the result of their communication breakdown, and it could also be that she is using the children to punish Mr. W, by refusing to change the doctor’s appointment so that Mr. W could spend time with the children.

309.  Most parents love their children, although not many can honestly reflect on whether the children would be better off living with the other parent.

310.  Children need parental love and the freedom to love both parents. K openly shared her conclusion that neither of her parents can allow her or her brother to love the other parent. She has evidently been doing a lot of thinking on the topic and comparing the two places as well as the two parents. Both have their ups and downs, and neither will lead to happiness for her and her brother as, sadly, she knows that both parents will continue to use whatever they say to attack the other parent.

311.  Upon reflection, K acknowledged that a lot of what she said to the teachers and doctor a while back was for attention-seeking, but it is a concern that so many tests have been done.  When asked, she was hastily diagnosed with what is undoubtedly one of the most common diagnoses one can give. However, it should not be given to a teen in distress resulting from parental conflict.

312.  The level of impulse control raised by her teacher is slightly elevated, but that is also part of being a teenager, when they take more risks compared to when they are younger or older. Neuroscience has discovered that, around age 11, the prefrontal cortex (the thinking and planning part of the brain) and parietal lobes begin a period of prolonged pruning of neurons, result in a thinning of cortical grey matter, hence children around that age are less able to control their impulses and show poor decision-making. K seems to be the only one in the family unit that is functioning and able to see the needs of R and think of his best interests instead of her own.

313.  Both parents are educated and intelligent individuals. They both claimed to love their children and I could see that both do want to provide a nurturing environment for the children, but at the same time they cannot break away from the chains of toxicity that they have created.

314.  Instead of investing in their careers, both parents are wasting a lot of their time and energy in order to stay a very toxic relationship. Both are overly rigid, stuck in cognitive dissonance. They cannot unmesh themselves from their strong belief in the fault of the other parent and they both rationalize their behaviour using the children as a weapon to attack the other parent.

315.  During the interviews, it was clear that neither of them show any intention of unmeshing themselves and moving forward with the children. There were both focusing on pointing the fault of the other.

316.  K was able to describe melodramas in the past that would drive most teenagers to a rage, but she described it in lucid and non-emotional terms and in an organized way. She takes on the parental role for her brother and also as the peacekeeper for her parents, although the only solution for her is to stay away from her parents. She has set extremely low expectations for her parents. She is thinking of survival more than most teenagers. She knows she needs to be free from her parents’ toxic warfare but she is only 15.

317.  Nevertheless, there are a number of caveats concerning the possibility of the children relocating to the US. If Mr. W could not communicate effectively with Madam W for the last seven years, and it does seem like he is having a hard time listening to her instead of assuming what she says, there is no chance for Madam W to have any continuing relationship with the children. Mr. W would simply defy any court orders unless they are from a US court.  Furthermore, he has only been with his current company since March.  It is questionable how stable it could be, especially as he does not have a lot of savings that ensure the children would have enough to live on.

318.  Thus, the main issue is not where the children go, but how to stop the parents from using the children in their fight and keep the children out of the middle of their conflict.  Both K and R should be allowed to be thinking of schoolwork, friendship issues and the process of growing up, not about how to keep the peace.

319.  The parents are showing signs of narcissistic traits and both are using the children as pawns in their game of chess. My worry is that, as K said, one day R would not be able to cope and if anything happened to him, they would still be arguing and not able to see how they contributed to a tragedy that should never have happened.

International Social Welfare reports

35.  Again it is the second report filed in June 2018, which although a little out of date, is of more relevance when compared to the earlier report. This report confirmed the father’s case, i.e. that he was living in suitable housing, that the children would be eligible to attend good local public schools and that he was in paid employment in Michigan. None of this points were seriously challenged by the other side.    

Should permission be given for K and R to relocate to USA with their father? Or should they remain in Hong Kong with their mother?

36.  In this instance the application is made by a father who is not currently the care taking parent. Consequently, as indicated above, one of the distinct features that under pin the Payne protocol namely that the applicant is the primary carer does not apply here. It is though true that the father wishes to “return home”, and indeed has done so, and that this is a feature in much the same way as in a classic relocation case.

Is the father’s application to relocate to Michigan, USA, genuine in the sense that it is not motivated by some selfish desire to exclude the mother from the children’s life? Is the father’s application realistic i.e. are his proposals practical and both well researched and investigated?

Is the father’s application genuine?

37.  I accept that the father’s application is genuine, in the sense that he truly believes that it is in the children’s best interest to relocate to    USA. I also accept that this was always his plan – i.e. that the children should return to America, where they were born and where they have citizenship. I also accept that, notwithstanding the almost chronic level of conflict that exists in this case, that his preference is not to exclude the mother from the children’s life. To that end reference may be made to numerous references on this point in his affirmations including these comments in his last affirmation of the 7 February 2019:

44. In case my relocation application is granted, I shall try my best to continue fostering the mother-children relationship. I shall provide the 2^nd applicant weekly general updates of the Children such as activities, studies and doctor appointment....

38.  It is of note that the father did provide the mother with regular updates, even when the children did not return to Hong Kong as planned in 2017.

Is the father’s application realistic – i.e. founded on practical proposals both well researched and investigated?

39.  I accept that the father’s plan is realistic. He has a suitable three bedroomed house, with two bathrooms, where he and the children can live, with appropriate schools in the area which would be free of charge for an American citizen. The father is also working and he will be able to offer appropriate financial support for K and R. I will now look at each of these areas in turn and will compare them with the options proposed by the mother.

Schooling

40.  I accept that from K’s perspective schooling is pivotal. The father has confirmed that she would be able to enrol into an International Baccalaureate school in his neighbourhood in Michigan and that there is more than one alternative. At the hearing on the 17 September 2019 the father produced information in particular concerning E High School, which is an IB World School. He also confirmed that this would be about a 10-minute drive or a 20-minute cycle from his home. He further confirmed that the children would be able to enrol into this school. This is a public high school and it would be free of charge. Similarly, R would be eligible to join its sister school – E Public schools, or alternatively he could attend a different school in the area, including the school he went to in 2017.

41.  In contrast both children could continue to attend the X Academy in Yuen Long, where both children seem settled, despite the concerns about bullying during the trial. They seem to be doing reasonably well and K said that her teachers had promised that they would not let her fail. It is of note that the children have a long way to travel each day – i.e. from Jordan to Yuen Long. The school is an IB Direct Subsidy school and is therefore relatively affordable.

Housing

42.  Again this is a very pressing issue. In the event that the children relocate they will be able to live in a very comfortable home, where each child will have their own bedroom. At present they are living in a four bedroomed 1,000 square foot flat in Jordan. Originally the mother and both children shared a room, but after the maternal Grandfather passed away, the mother moved into the Grandfather’s room. The paternal Uncles each occupy one of the other bedrooms each. Thus K and R share a room and sleep in bunk beds, which I accept is not an ideal situation for adolescents of different sex. This situation has been compounded recently by the mother’s employment of a domestic helper and the suggestion that the domestic helper will also be sharing K’s and R’s room. Although K did not complain about the sleeping arrangements, it is clear that generally speaking she hates her living environment and is not comfortable living in the flat in Jordan with the paternal Uncles, with whom she does not appear to have a relationship.     

Financial support

43.  The mother confirmed in the witness box that she is currently earning HK$26,000 per month as a school administration officer.   

44.  The father also earns a relatively modest amount, but he is likewise now in stable employment and has been with the same employer since March 2018. His counsel summarized his financial situation as follows in his closing submission:

52. On F’s finance, it is true that he was employed by his current company since March 2018 and his salary is partially dependent on commission. Due to the nature of F’s job, his income is seasonal and fluctuates but F would reserve a ‘2 to 3 months cushion’ (Day 2, 11:10). F now provides his updated employment record which shows he has an increased and stable salary compared to previous year [Attachment 2][A/381-382] (Day 1, 16:20) & (Day 2, 11:10). The Court would note that F’s weekly net pay in the week of 13 May 2018 to 19 May 2018 was US$438.86[A/382] and the week of 20 May 2018 to 26 May 2018 was US$685.55[A/381]. Whereas F’s updated record shows his weekly net pay in the week of 9 June 2019 to 15 June 2019 and 16 June 2019 to 22 June 2019 were US$555.86 and US$573.18 respectively, hence it is more stable. F’s net pay for the period of 1 January 2018 to 26 May 2018 was US$5740.61, [A/381] whereas his updated record shows his net pay for the period of 1 January 2019 to 15 June 2019 was US$12,939.90.

45.  The difference of course, as pointed out by Ms L, is that the cost of living is lower in Michigan. It seems that the father will be able to offer the children a much more comfortable life style when compared to that of the mother.

Physical care

46.  One of the biggest difficulties with the mother’s case concerns the lack of physical support for the children. She confirmed in the witness box that she is currently working from 8 am – 5:00 pm five days per week. Previously she had tried to reduce her hours so that she was leaving work at 4:00 pm each day. However, this solution appears to have been rather short lived. In addition, she said that she is entitled to 30 days leave per year – 20 day’s annual leave and 10 day’s personal leave. However, this means in reality that there will be many days when there is no responsible adult to care for R when the mother is not available during the school holidays or after school. R also seems to be left to his own devices for much of the time. The mother admitted that he preferred to go to MacDonalds instead of staying at school to do his homework. He is unable to return home until either the mother or one of the Uncles has returned and is able to let him in. The children were not given a key and did not have access to the flat otherwise. This is highly undesirable. K has experienced similar difficulties. It seems that even after the first tranche of the trial the mother had not resolved this issue. Although she has now employed a domestic helper, in her name, this is very late in the day and has seemingly only come about as a direct result of this litigation. The mother says that this is a relatively new problem and that previously the children were looked after by the paternal grandfather. In any event, given the current social unrest in Hong Kong, it is not clearly not desirable for young people to be left unsupervised for long periods of time or to have nowhere to go.     

47.  In contrast it is the father’s intention to take care of the children himself. I accept that he intends to take a hands on approach to parenting in Michigan, that he has a flexible work schedule and that he will be able to work from home as necessary. He will also be able to rely on his extended family if need be. He plans to take the children to school himself and to be available for them after school.

48.  Although the mother has now, very late in the day tried to resolve this issue by hiring a domestic helper, I remain concerned, as I have stated above, that this has all of the hallmarks of “litigation window dressing”.

Is the mother’s opposition to the father’s plan genuine? Does she wish to exclude the father from the children’s lives? Are the mother’s proposals, if the children stay in Hong Kong, realistic? i.e. are her proposals practical and both well researched and investigated?

49.  As indicated above the mother’s plan is practical and save for concerns surrounding the employment of a domestic helper, her plan is also realistic. However, it may not be optimal. There is also a concern given that there still seems to be an issue with respect to remote access and the mother’s ability to facilitate the same. I am concerned that the mother is so caught up in the fight that she may indeed exclude the father from the children’s lives, in the event that they remain in Hong Kong.  

50.  However, I also accept that the mother genuinely believes that it would be better for the children if they remained in Hong Kong.

Is the mother’s opposition to the father’s application motivated by genuine concern for the future of the children’s welfare or it is driven by some ulterior motive?

Likewise, is the father’s desire to live in the US also motivated by a genuine

concern for the children’s welfare or by some ulterior motive?

51.  As indicated above I have some concerns about the parties’ behaviours with respect to each other and the litigation generally and having seen the parties in the witness box and in court over a long period of time I would, with respect endorse some of the observations made by Ms L. In particular, it seems to me likely that both parties are motivated by a desire to “win” almost at any costs and that on occasion this may over shadow any concerns that they might each have for the welfare of the children. 

What would be the extent of the detriment to the mother and her future relationship with the children were the application granted?  To what extent would that be offset by an extension of the children’s relationships with the paternal family?

What would be the extent of the detriment to the father and his future relationship with the children if the application is not granted?

52.  The father was able to show that even after he had wrongly retained the children in the US that he did still communicate with the mother. He told her how the children were faring and he shared all requisite information with her concerning the schools, medical and even social updates. In contrast there have been many complaints made by the father that the mother has not been equally forthcoming with him about many aspect of the children’s lives whilst they have been in her care. My concern is that if the relocation is denied I think it is likely that the father’s relationship with R in particular is likely to be damaged beyond repair. I think it extremely unlikely that access will take place even as proposed by the mother. In contrast I think it is more likely that the father will support access between the children and the mother, as he has done in the past, if the relocation is permitted, notwithstanding his failure to return them in 2017. To that end it is also of note that the father did appear to support contact between the children and the mother when they were living with him in China from 2011 to 2013.    

53.  Further, it seems to me that the children and in particular K, will benefit from being in closer contact with the maternal Grandmother and the other grandparents, together with the other family members on her father’s side if she relocates. R is more ambivalent about that, although even he acknowledged that he has a good relationship with “Grandma P”.

54. In contrast, and as indicated above, K does not like her paternal Uncles at all. R likes one but not the other and there are no other extended family members that the children are aware of living in Hong Kong. This was confirmed by the mother in her affirmations. 

What would be the impact on either party in the event that the relocation is allowed or denied?

55.  I accept that much hangs on the outcome of this litigation and that each party is likely to be very upset if the decision does not go their way.

The character of the parties

56.  I should add that in all cases concerning children it is important for the judge hearing the case to see the parties in the witness box in order that she may form some view of them for him or herself. This case is no exception. In this instance I have also had the benefit of seeing both sides in court over a long period of time. On this occasion both of them also gave evidence.

57.  Much has been said about the father not complying with the court order dated the 26 May 2017 when I gave leave for the children to go to the US for a summer holiday. That is true. However, I also accept the reasons that he gave at that time for not complying. Certainly if the mother’s house was as unhygienic and messy as the pictures from R show, then he certainly had cause. It is also of note that the wife has not always complied with court orders with respect to access and that she appears to take a somewhat hands-off approach to facilitating access, particularly where R is concerned. I accept that she has also not complied with court orders on occasion.

58.  Further, I accept that both parties love their children and are trying to do the best for them in difficult circumstances. As indicated above I also agree with much of what has been said by Ms L in relation to the character of the parties, their relationship with each other and this litigation.

Conclusion on relocation

Overall what is in the best interests of K and R?

59.  Although this is a finely balanced case, it seems to me, having considered all of the competing factors, that it would be in the best interests of the children to relocate to the USA, with their father. Although it is true that the concept of “status quo” is very important in children’s matters, it goes without saying that the status quo should only be maintained and attached weight to, if it is working well. Unfortunately, although it is working here – up to a point - it is not working optimally.

60.  I have also attached weight to the views expressed in particular by K to me directly. She is almost 17 years old and is mature for her age. It is appropriate in those circumstances for significant weight to be attached to those stated views.

61.  I have also considered the needs of the children and it seems to me that their physical, emotional and educational needs will be met more fully in the US, as compared to Hong Kong. I accept that the father will take a hands on approach to parenting in Michigan, that he has a flexible work schedule and that he will be able to work from home as necessary. He will also be able to rely on his extended family, in particular his mother – Grandma P and his sister A who also lives close by with her family. In contrast I have had some very real concerns about the mother’s ability to provide suitable hands on care for R in particular, when she is working and he is not in school. Although she has attempted to resolve this by employing a domestic helper, this solution has, as I have said before in this judgment, only come about very late in the day and seemingly at the cost of even greater overcrowding in the home. I accept that the paternal Uncles are not caregivers and that they have no direct role in the children’s upbringing although they have offered their assistance to the mother from time to time.           

62.  The move will however be dependent on two things, namely a) the father being able to enrol K into an IB school and b) the father obtaining a mirror order in Michigan prior to the relocation taking place.

63.  I have given a lot of thought as to the timing of the proposed relocation and having considered all of the conflicting factors here, I think it would probably be best if the children were to relocate permanently at the end of the current academic year. This will also enable them to obtain their HK permanent ID, which may be important to them in the future. They are mixed race children and they should, if possible be able to live and study in either the US or Hong Kong. This will also mean that K’s choices for her tertiary education will be kept as broad and as cost effective as possible.

64.  The downside is that K will be half way through her IB program. Hopefully she will not need to repeat a year, but I accept that this may be a possibility. I am though comforted by the fact that she is taking mainly generic subjects for her IB, which will hopefully make the transition less difficult than it might have been otherwise.  

65.  In the interim I shall also order that the children shall go to the US over the school Christmas holidays. The father has undertaken to pay for all costs of travel and I will hold him to that undertaking. They shall leave after the end of current school term and return before the beginning of the Spring term in January. This is also subject to the father filing the normal undertaking to return the children to the jurisdiction of Hong Kong in January 2020. If it is now too late to arrange this trip, then in the alternative the children shall go to the US over the Easter school holiday, leaving after the end of the Spring school term and returning to Hong Kong before the beginning of the summer term.

66.  The children shall relocate permanently to the US after the end of the summer school term 2020 in Hong Kong and in any event not later than the 1 August 2020

What orders should the court make for custody, care and control and access?

67.  The parties already have joint custody of the children by virtue of the court order dated the 29 June 2011. That order has not been varied. The mother currently has an order for care and control. It follows that this order shall be varied, so that the father shall have care and control of both children with effect from the date of the relocation. The mother shall also have access along the same line as her proposal as set out in paragraph 22 above.

Costs 

68.  Given that this is a child related matter I shall make an order nisi that there shall be no order as to costs, such order to be made absolute at the expiration of 14 days. There shall be certificate for counsel.

Orders

69. Consequently, and for the avoidance of doubt I shall make an order as set out below:

UPON the undertaking of the 1^st Applicant to pay for the children’s return airfares to Michigan USA for a) the school Christmas vacation in December 2019 or in the alternative the school Easter vacation in 2020 and b) when they permanently relocate to Michigan in the summer of 2020.

AND UPON the 1st Applicant further undertaking to pay for the return airfares for the children in order to facilitate their access to the 2^nd Applicant as set out in Order 2 below, such undertaking to remain in place until each child reaches the age of 18 years or ceases full time education.  

IT IS ORDERED THAT

Order 1

Upon the 1st Applicant filing an undertaking to return the two children of the family referred to below to the jurisdiction of Hong Kong at the end of the Christmas trip

IT IS ORDERED THAT

1)  Leave be given for the two children of the family namely K, a girl born on the 16 February 2003 and R, a boy born on the 3 January 2007, to be removed out of the jurisdiction of Hong Kong on a temporary basis in order to go on holiday to Michigan, USA either over the Christmas school holiday in 2019 or the Easter school in 2020.

2)  There be no order as to costs save that both parties’ own costs be taxed in accordance with Legal Aid Regulations.

Order 2

1)  Leave be given for the two children of the family namely K, a girl born on the 16 February 2003 and R, a boy born on the 3 January 2007, to be removed out of the jurisdiction of Hong Kong on a permanent basis in order to reside in Michigan, USA after the end of the summer school term in Hong Kong 2020 and in any event by no later than the 1 August 2020.

2)  Upon the relocation, order 1 contained in the court order dated the 16 August 2013 shall be varied to the extent that the 1^st Applicant shall be granted care and control of K and R, with reasonable access to the 2^nd Applicant to include:

a) Unlimited internet access to include internet and video calls;

b) Reasonable staying access in the United States by agreement between the parties;

c) Staying access in Hong Kong for one month during the school summer holidays commencing in the summer of 2021 and either staying access in Hong Kong during the school Christmas holidays or the Easter school holidays for up to 10 days, also commencing in 2021.     

3)  Upon the relocation, Order 3 contained in the court order dated the 16 August 2013 shall also be discharged.

4)  Liberty to apply on an urgent basis with respect to the implementation of this order.

5)  There shall be an order ni.si to be made absolute at the expiration of 14 days that there shall be no order as to costs save that both parties’ own costs be taxed in accordance with Legal Aid Regulations. There shall be certificate for counsel.

IT IS FURTHER DIRECTED THAT

6)  The 1^st Applicant do obtain a mirror order from the appropriate court in Michigan with respect to the terms of this order, such order to be obtained prior to the children’s relocation.

7)  The 1^st Applicant shall enrol K in an IB school in Michigan, US and he shall also enrol R in whatever school is deemed appropriate by the parties, evidence of such enrolment to be filed at court prior to the children’s relocation.