HYCC, also known as CHYC v. OJW also known as WOJ

FCMC 9529/2019

[2024] HKFC 134

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 9529 OF 2019

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BETWEEN

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J U D G M E N T
( Relocation )

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1.  This is an application by the Petitioner Mother (“M”) on 8 August 2022 to relocate to the Philippines with the children of the family. Her application also asks to have care and control of the children of the family and for their maintenance.

2.  Respondent Father (“F”) opposes her application.

3.  The parties have two children, their son C born in January 2011, and daughter S born in August 2014, (collectively the “Children”). They are respectively age 13 and 9 at the time of the hearing.

Background of Parties

4.  M is 36 years of age, born in Hong Kong. She works as a freelance actress, producer and substitute teacher.

5.  F is 41 years of age, originally from the UK. He works in the finance industry; moved to Hong Kong in 2007 and is currently the CEO of SJPWM and its Asia Partnership director, he travels regularly to their Singapore office.

6.  The parties met in 2009, the Children were both born out of wedlock, the parties married in December 2016.

7.  The family lived in Shanghai between February 2011 until July 2017. F was looking after the company’s business there, and also took a part time degree. M was a full-time carer to the Children in Shanghai.

8.  On their return to Hong Kong in July 2017, F purchased the former matrimonial home (“FMH”) in Lantau.

9.  The relationship broke down in late 2018, M communicated her intention for divorce in June 2019 and moved out of the FMH in July 2019.

10.  Since the parties separated, M has always lived in the vicinity of the FMH on Lantau island. She initially lived in a small apartment and subsequently moved to a bigger place in December 2022,

M’s new partner

11.  In around February 2020, M met T, who is a lawyer; and introduced him to the Children in August 2020. Over the years, T has developed a close relationship with the Children.

12.  After some medical issues in late 2020 and early March 2021, T decided to look for alternate employment. His initial opportunity to go to Beijing fell through, but he received another offer from a bank in Manila as legal counsel. In circumstances to be further elaborated below, T accepted the offer in May 2022 and moved to Manila at the end of August 2022.

13.  M and T signed a Pacte Civil de Solidarite (civil union) at the French consulate in Hong Kong in September 2022, and was married in Hong Kong in June 2023.

Procedural History

14.  M petitioned for divorce in July 2019.

15.  The proceedings were relatively smooth, the parties negotiated settlement which ended with an Order made by HHJ Melloy in May 2020 granting custody care and control of the Children to F, with reasonable access to M. F paid a lump sum of $4,760,000 to M as full and final settlement to her claim for ancillary relief.

16.  Decree Absolute was pronounced on July 2020.

17.  M issued this Relocation Summons on 8 August 2022 and for child maintenance from F upon relocation.

18.  In September 2022, an Order was made by consent that the previous custody order made on 13 May 2020 was to be varied such that the parties will have joint custody over the Children. It does not appear to be in dispute, and F acknowledges that this was the original intention of the parties.

19.  After the CDR failed on 6 January 2023, an order was made granting access to the Children as follows: Monday afterschool to Wednesday before school with F, and Wednesday afterschool to Friday before school with M; and alternate weekends from Friday afterschool to Monday morning. By all appearances, the previous sole care and control to the F has become a shared care and control arrangement between the parties.

M’s case

20.  M says that during the divorce proceedings, she was vulnerable and had no energy to argue with F during the financial discussions, she therefore accepted his lump sum offer, together with his condition in settlement that the Children lives with him at the FMH.

21.  She says that despite parties’ separation and the Children living at the FMH, she is the person who takes care of them on a daily basis, works out their daily needs and schedules, get involved with the school, and liaises with teachers and tutors. She has created a calendar where she inputs all information regarding school timetable, homework, tests, events, ECAs, playdates and medical appointment which she shares with F. F works full time but has a domestic helper who assists M in the care of the Children.

22.  M first raised the issue of relocation with F in February 2022. T originally had an opportunity in Beijing, F did not agree to Beijing and in any event that opportunity fell through. T was subsequently offered a position with a bank in Manila in around April 2022. M says that she discussed with F about the Children’s relocation to Manila then.

23.  M says that F was initially very positive about the relocation plan, emails exchange around that time shows that there were on-going discussions between the parties. M says F did agree to the relocation plans.

24.  At the hearing, T gave evidence that he met with F on 21 May 2022 to discuss outstanding issues of relocation. On the premise of their discussion and his understanding of F’s agreement, T accepted the Manila offer after that meeting.

25.  M told the Children on 27 May 2022 of the relocation plans. This happened when F was away from Hong Kong but she says that she had spoken to F and that he had agreed that she would communicate with the Children. In an emails exchange, F did say “… I am fine for you to talk to the kids while I am away … I can video call in if you like … I’d rather they have more notice to get use to the idea …”. However, despite this message, F says that she should not have discussed this with the Children then.

26.  M says F’s attitude changed when he was asked to provide financial contribution to the Children in Manila. M says she was shocked when informed by F’s then solicitors on 28 June 2022 that he disagrees with relocation.

27.  She says that after she issued her relocation application, she received a letter from the F’s solicitors on 15 August 2022 saying that F in principle has no objection save for timing, care plan and subject to the Children’s views. She also says that on 30 August 2022, F’s solicitors wrote to her solicitors to say: “there is an agreement in principle that the Children may relocate to Manila … (subject to the timing of the relocation, the care plans …. And [F]’s opportunity to spend time with the Children).”

28.  In her second affidavit, M made allegation that F had been neglectful and abusive to the Children, she cited a number of examples, in particular her concern that F has called C a girl due to his long hair.

29.  M therefore says that F has agreed to relocation but subsequently reneged.

30.  Her Proposal in the event of refusal of relocation is to maintain the time the Children spent with respective parents as per the January 2023 Order, a shared care and control order to be made, and long holidays to be shared equally. In the event of leave being granted for relocation, then shared custody, care and control to her, and access arrangement to F as follows:

a. daily video call

b. October mid-term break, 2 consecutive weeks during Christmas, Easter holiday, and 4 consecutive weeks in the summer.

c. M will facilitate Children to travel once a month to Hong Kong / Singapore on the weekend where Children’s school schedules permit.

d. Should F travel to Manila, generous access to F including staying access.

31.  Irrespective of the outcome of the relocation application, M will be seeking maintenance from the F. However, the present hearing does not involve the maintenance for the Children.

F’s Case

32.  F denies there was ever a final agreement with M on relocation. He says he was opened to this discussion only because of the school situation due to Covid.

33.  In his counsel’s opening submission, he cites the following concerns:

a. Children’s safety

b. How to continue his close relationship with the Children

c. Financial concerns about the level of money that M’s claim would be needed for the Children’s expenses

34.  And then on what F claims to having reflected on the “deteriorated co-parenting dynamics with the Mother”, he further adds:

d. Whether M’s intention is genuine. He says M is financially motivated. From May 2022 to December 2022, M has changed the amount she asks F to contribute, from between $8,720 per child plus school fees to $22,600 per child plus school fees

e. Whether this is a permanent relocation. Commenting on T’s change of jobs over the previous years

f. Whether M is committed to maintaining the close bond between F and Children

g. There is no good reason to alter the status quo of the Children, and that M has no support network in Manila

35.  F’s counsel argues that F is the Children’s primary care giver with the assistance of the domestic helper. F says that the Children accommodation at FMH in the Lantau community and a consistent domestic helper since 2017 give familiarity, stability and continuity to the Children.

36.  F acknowledges that the parties have successfully co-parented for more than 3 years despite disruption to school and work due to the social unrest and Covid. He says that he and M acknowledge their respective love and care for the Children. However, after the litigation commenced, F’s relationship with C has deteriorated, and he blames M for it.

37.  He is of the view that the Children will have better education, lifestyle and relationship with him in HK.

38.  He further says that he has embraced T into the family, and pointed to one photo taken at S’s 7^th birthday party showing them sitting around the table.

39.  F’s proposal to M is that should relocation be disallowed and she stays in HK, for him to have sole care and control and term time split as in the existing Order of 22 August 2023 and generally to share the holidays equally. Should relocation be allowed, F asks for access to the Children every time he visits Manila with no less than 7 days’ notice; he also asks for entire October mid-term breaks, entire Winter breaks, entire Easter holiday each year, and to share summer holiday. He further asks for M to return the Children to HK for F’s access.

40.  F has a new partner A, who is his co-worker. She has not been called as a witness to these proceedings and has not been put forward as an additional carer for the Children.

Children therapist

41.  In around September 2022, on seeing that the Children are caught in the parties’ conflict, M arranged for the Children to see therapists, but did so without informing F. She says this was not litigation driven and only wanted the Children to have an avenue to vent their emotions, she subsequently acknowledged that she should have.

42.  M says that F did share the costs of two the therapists initially, but took issue with the M in his first affirmation, which then became a “feature” in subsequent correspondences and at trial.

43.  F subsequently arranged another therapist for the Children in November 2022, claiming that those chosen by M was not covered by his insurance. M only learnt about this when C told her.

44.  It appears that the Children’s therapy has been put on hold for a while. Parties have subsequently agreed to have family therapy with Dr Zaidi, which according to the M’s submission has been put on hold until after the trial.

The Social Investigation Report

Social Investigation Reports

45.  Two reports were filed in December 2022 and then in August 2023 respectively.

Report dated 30 December 2022 (“SIR”)

46.  The SWO commends the parties on their collaboration in their co-parenting.

47.  The SWO reports that C is very close to M and the Children have a good relationship with T.

48.  It was reported that both Children finds that F was busy working and did not spend much time with them.

49.  The following quotes from the SIR are important:

C says that:

“… he was close to his mother since he was young and he would share everything to his mother, even for boys matters or secret issues he would frankly disclose to her. Also he was fond of [T]. C rated Mr. [T] as 9.5 out of 10 in terms of the closeness of their relationship and he was the best man in the world. He preferred staying in the mother's home to the father's home.”

Of the F, C has this to say:

“Father seldom had 1/2 day off for him and [S], he believed that the father had played with him for so long because of the investigating officer.”

S says this:

“… she commented that the father was always busy. She felt having tried hard to get his attention but he didn't hear her. Therefore, she always liked to have company of her mother as she was always here for her and her brother. She liked [T] as he was funny as he was funny and they had a lot of fun time together.”

S told Miss Li (the school counsellor) that:

“… her father did not understand her wants as well as her mother. She said that her mother and Mr. [T] would cook for her or she would join them for cooking at home. However, her father was always busy and sometimes he was so busy that he forgot to ask what she wanted. … She wished that her father would cook for her but she believed her father would not entertain her request and therefore she did not express her wish to him. She wished her father would listen to her.”

50.  The SWO also appears to be giving F a reminder on how he should be refocusing his time:

“The investigating officer believed that the father would have learnt a clear message from the children's disclosure after reading this SIR that the children needed his quality time. It was the call of the father whether to renew his priorities and seize the opportunities to boost their filial relationship as the children would grow up soon. A timely insight with appropriate action on the parent might pave the way for a healthier bond and more family resources for the children.”

51.  In this report, the SWO found that M’s relocation plan was not motivated by some selfish desire to exclude the father from the Children’s life and that she was ready to facilitate F’s access. However, she also concluded that the M’s relocation plan was well researched but were “premature”, but did not give reason for her conclusion.

Supplemental SIR dated 6 January 2023

52.  The SWO made two minor amendments. One was for M to remain in Hong Kong and maintain her relationship with her husband through visits. The second is her recommendation for F to retain sole care and control of the Children.

Updated Social Investigation Report dated dated 28 August 2023 (“USIR”)

53.  This Report reveals that F has made some effort to re-prioritize his time and had spent more time with the Children on holiday and working from home. However, the relationship between F and C has deteriorated and he continues to blame M. S is reported to be happier as F appears to be spending more time with her.

54.  There is quite a lot of coverage in this report involving A, including comments from her.

55.  The SWO also places some focus on “Disputable complaints on C’s wellbeing”, she says these accounts comes from M. Following the SWO’s investigation, she says there is no suspicion on child maltreatment.

56.  More contents from this report comes in a later analysis.

57.  In conclusion, the SWO says in the USIR that she will not give weight to C’s account of his father’s involvement in the complaint incidents. In a complete reversal of her position, she concludes in this report that her investigation “may cast doubt on the sincerity of the moving parent to facilitate a meaningful connection between the father with his children.”

58.  She also says that “The Investigating Officer believed that facilitating the reconciliation of the father-son relationship would be one of the significant factors in the decision on the relocation.”

59.  The SWO therefore concludes that “the feasibility of the move to Manila, the mother-child relationship, and the children’s wishes did not hold enough weight to justify supporting the Petitioner’s relocation and the move was not serving the best interest of the children.”

International Social Investigation Report (“ISIR”)

60.  The ISIR was filed on 8 July 2023, and a supplemental ISIR filed on 7 August 2023. The ISIR reports on T, his work, his views of the relocation application, relationship with M and the Children.

61.  It also reports on the location of the intended accommodation of M and T and school for the Children. It says that it is in a safe and peaceful area with easy access to medical care, schools, police authorities and fire station. The school they chose for the Children is a “high-end school”, and across the street from their intended residence.

62.  The supplemental ISIR deals with the recognition of the parties’ civil union and marriage in the Philippines and the dependant visas for the Children. Photos of the type of apartment that the parties intend to rent are also produced.

Legal Principles

63.  My starting point is found in s.3 of the Guardianship of Minors Ordinance (Cap. 13), which states that the best interest of the minor is the first and paramount consideration.

64.  The applicable principles governing relocation application were based on the English Court of Appeal case of Payne v Payne [2001] Fam 473 and adopted by our Court of Appeal in SMM v TWM [2010] HKFLR 308, [2010] HKLRD 37 CA where Cheung JA summarised them at §21 of his judgment as follows:

“1) …

2) …

3) The application should be approached as follows:

(1) 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, i.e. founded on practical proposals both well researched and investigated? If the application fails either of these tests, refusal will inevitably follow.

(2) 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?

(3) 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?

(4) 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 in so far as appropriate. (per Thorpe LJ at paragraph 40)

4) In short, the relevant factors are:

(1) The welfare of the child is always paramount.

(2) There is no presumption created by section 13(1)(b) of the English Children Act 1989 in favour of the applicant parent.

(3) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.

(4) Consequently the proposals have to be scrutinised with care and the Court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.

(5) The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.

(6) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.

(7) The opportunity for continuing contact between the child and the parent left behind may be very significant. (per Butler-Sloss P at paragraph 85)”

65.  In the case of BA v BL (Child Relocation) [2019] 4 HKLRD 23 the Court of Appeal per Cheung JA reiterated and further elaborated on the approach to be taken in relocation cases:

“4.12 This led to the more recent decisions of the English Court of Appeal such as K v K where it is stressed that, in the determination of applications for permission to relocate, the welfare of the child was the paramount consideration … The three judges in K v K, Thorpe, Moore-Bick and Black LJJ were of the same view on this point.

4.13 …

4.14 … 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.

...”

66.  I also found the following from Lady Justice Black (as she then was) in the abovementioned case of K v K [2011] EWCA Civ 793 to be of assistance:

“141. The first point that is quite clear is that, as I have said already, the principle – the only authentic principle – that runs through the entire line of relocation authorities is that the welfare of the child is the court’s paramount consideration. Everything that is considered by the court in reaching its determination is put into the balance with a view to measuring its impact on the child.”

67.  HHJ I Wong has in his recent case of JTMW v NAV FCMC 8504/2017 [2020] HKFC 244 succinctly summarized important points of principles enunciated in the case of ZJ v XWN at paragraphs 53 - 55:

53. The Court of Appeal endorsed what Vos LJ said in Re C (A Child) (International Relocation) at [82] and [83],

82. I add a few words in an attempt to summarise the position that has now been reached. As counsel before us agreed, in cases concerning either external or internal relocation the only test that the court applies is the paramount principle as to the welfare of the child. The application of that test involves a holistic balancing exercise undertaken with the assistance, by analogy, of the welfare checklist, even where it is not statutorily applicable. The exercise is not a linear one. It involves balancing all the relevant factors, which may vary hugely from case to case, weighing one against the other, with the objective of determining which of the available options best meets the requirement to afford paramount consideration to the welfare of the child. It is no part of this exercise to regard a decision in favour or against any particular available option as exceptional.

83. ...

54. The Court of Appeal also dealt with the use of the “welfare checklist” in the balancing exercise. The “welfare checklist’ is only an aide-memoire. A judge is not required to mechanically list every factor to demonstrate that he has considered the same.

55. The Court of Appeal emphasized that the guidance in Payne or SMM v TWM or the welfare checklist are simply tools to assist a Family Judge in making the multifactorial assessment to reach a result which is in the best interest of the child after taking account of the potential impact on the parents: at [30].

68.  The consideration of guiding legal principles will be incomplete without citing what has been referred to as the welfare checklist factors, which have been listed in our “Children’s Proceedings (Parental Responsibility) Bill, and has yet to be passed as law in Hong Kong (the “Welfare Checklist”). These are factors that should be taken into account when determining issues relating to children and where their best interest is to be considered:

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.”

69.  With regard to recognition of Children’s point of view, it is of assistance to refer to the case of Re D (Abduction: Rights of Custody) [2007] 1 AC 619 at 641 F-G, which involves a child then age 8:

“But there is now a growing understanding of the importance of listening to the children involved in children's cases. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents’ views.”

70.  With these principles in mind, I shall proceed to apply them to the case at hand.

The Analysis

Initial Observations

71.  The parties appear to have divorced reasonably amicably and settled terms very quickly. The issue of sole versus joint custody was admittedly an oversight on the F’s part, and also eventually resolved with an Order by consent in September 2023. It is not in dispute that prior to the relocation application, the parties have achieved what very little parents appearing in the family court have managed to do, they have actually co-parented extremely well. Unfortunately, everything started going downhill when the current proceedings began. Parties have since found faults with each other, complained against each other’s conduct and in their dealing with the children; all of which then became subject of solicitors’ correspondences and lengthy cross-examinations in court. The Children, fully apprised of the situation, are caught in the parties’ strife and inflicted by loyalty conflicts.

72.  I do not intend to dwell on M’s allegation that F had agreed and then renege whereas F denies this. M says F did agree but conditional upon various things at different times, like visas, care plan, Children's views, she says that there was no outright refusal and therefore F must have recognised that this was in the best interest of the Children. She also pointed out various emails which supports her contention. While I accept M’s case in this regard, the issue before me is not whether an agreement has been reached and then one party reneged.

My views on the SIRs

73.  I must admit I find the analysis of the SWO Ms Cheng and her oral evidence quite bizarre in several respects. This was commented at length by the M’s counsel in her closing submission, most of which I agree, the following largely follows the order in her submission supplemented by my views.

Quoting Children’s wishes from a third-party source

74.  Ms Cheng admits that she did not report directly about the Children’s views in her first report, but instead repeat what the Children told the school counsellor Miss Li. She says this under cross-examination:

“The reason why I didn’t state their wishes in my report is probably because the children had already told their counsellor their wish. All along, the children expressed their wish to go to the Philippines.”

“… and maybe there is some omission when I handled the text in the report, but I wanted to express the children’s wishes in my report. Therefore, I mentioned their conversation with the school counsellor Ms Li, when they told Ms Li that they wanted to go to the Philippines.”

I agree with M’s counsel that this is a serious omission in her report. It is the Court’s expectation that an investigation officer should look into the Children’s views and wishes and report her conversation with the Children for the court consideration, instead of quoting what someone else have heard from the Children. Her explanation is also difficult to comprehend.

Failure to report on S’s reaction to relocation in the first SIR

75.  It was only revealed in the USIR that S picked a “devastating” posture to represent her feeling during her interview for the first SIR. Apparently, S was asked to pick a projective picture to represent her feelings on both occasions. The USIR reads as follows:

“[S] wished to relocate to Manila and stayed with her mother, brother, and stepfather. She chose a scenario from the projective picture, showing herself in a sad sitting pose to represent her sad feelings when she was unable to move to Manila, the Philippines. It suggested a more composed response to that situation because she had picked a devastating posture in the last SIR review in December 2022; she picked a devastating figure at that time and revealed it would be the end of the world if she could not move to Manila. She calmly stated to the investigating officer that she wished her mother could stay with her in Hong Kong if she and her brother could not go to Manila.”

Under cross-examination, Ms Cheng gave a rather confusing answer along the lines that the first report was for the CDR; and she decided to bring this point up in the USIR because she saw a change in S from the first report. She failed to explain this serious omission when asked why she did not mention this the first time, it was put to her that she could not have anticipated that an USIR be called.

Failure to report on impact on M

76.  Ms Cheng also failed to report on the impact on M if the relocation is refused. M’s counsel says that this impact on the M will inevitably affect C as he is a sensitive child. To this Ms Cheng points to paragraphs in her USIR titled “Main carers in the child care history” and “Developmental needs of the children”, neither paragraphs dealt with the issue. At the end Ms Cheng says “I apologise I did not mention the impact on the mother in my conclusion.” She also admitted to F’s counsel that she is aware of this and considered it for her report; yet she has failed to put this important aspect into her report.

Suggestion to F to improve his relationship with the Children

77.  Ms Cheng admitted that by writing what she did in her first report regarding the relationship between F and Children (paragraph 50 above refers), she was giving an “opportunity to F to handle how his Children see him”. M’s counsel says that this is not the role of the SWO and I have to agree.

78.  I have also wondered why Ms Cheng in her first report says that M’s relocation is “premature”, as she did not elaborate on this. Now in hindsight and with this comment from her, it appears to me that she might have called the M’s application premature maybe because she wants to give F the time to improve his relationship with C. She wrote this in the paragraph following the “premature” comment:

“It was the call of the father whether to renew his priorities and seized the opportunities to boost their filial relationship as the children would grow up soon. A timely insight with appropriate action on the parent might pave the way for a healthier bond and more family resources for the children.”

This theme of C misunderstanding his father and the need for reconciliation was canvassed in cross-examination, but this is not the purpose of these SIRs, nor the role of the SWO. Nor am I generally of the view that a relocation should be delayed if it is in the children’s best interest just to wait for a staying parent to do better.

Source of information regarding safety in Manila

79.  On the subject of investigating F’s safety concerns of Manila, Ms Cheng has decided to quote information she elicited from F’s domestic helper, who says bad guys in Manila would target the Children, although she is not from Manila, and only lived there briefly; and from F’s girlfriend who talked about safety concerns in Manila from her memory at age 11.

80.  M’s counsel adds that having cited these two persons’ view on the safety in Manila, Ms Cheng did not ask M’s domestic helper who is from Manila, nor report what T has to say of Manila, although he must have the most relevant and updated information; nor did Ms Cheng cite from the ISIR which described as M’s intended residence as safe and peaceful. What is also alarming is Ms Cheng’s justification for putting forward the F’s domestic helper and A’s views on this topic, as she said they have a “kind intention”, and that “it was meaningful because [the domestic helper] and A insisted on telling me their views on relocation” and “Their views cannot be reflected in any of the affirmations”.

Failure to make reference to documents from T’s Employer

81.  M’s counsel says that Ms Cheng was wrong in commenting on the lack of security of T’s job. She says this in her report:

“… the stepfather has yet to fulfil two more years of his remaining non-permanent contract, whereas his future permanent staff status has no guarantee. The likelihood of job security in the [bank] would lead the family to move or leave the country.”

Under cross-examination, Ms Cheng was referred to two documents that were given to her which she failed to refer to in her report. These two documents were put into evidence; one of them was information from T’s employer that 95% of their staff have their fixed term appointment converted to a regular appointment; the other is a document from T’s direct manager that he has performed well in his first year and passed his probation period. When asked why she did not mention the two documents, she said “I think it is implied and I avoid it from being too clumsy and repetitive, It has already been mentioned.” I fail to see what she wrote in her report implies that the two documents were mentioned, it was yet another omission on Ms Cheng part in the context of her above comments, which is very relevant to the issue before the Court.

Failure to report on M and T co-parenting efforts

82.  M’s counsel also says that Ms Cheng has failed to report on M and T’s efforts in co-parenting. Inter alia, it is M who proposed to F that he wants to appoint a parenting co-ordinator, this was turned down by F, who said it was not needed as they were doing well. Furthermore, M and T took the co-parenting course, they have learnt from it, and even admitted in oral evidence how they felt they would have done things differently. I was initially not sure about whether F took the course, but it came out in Ms Cheng cross-examination that he did not, she was aware of this and yet left out this point in her report. On this, and from recollection of the oral evidence, I accept that M and T have both made efforts to keep up the co-parenting relationship; but it does not appear that F has engaged much in this regard.

Paragraph 38 of the USIR

83.  Special reference must be made to paragraph 38 of the USIR, which concerns what happens on the day M and T got married at the city hall ceremony in HK in June 2023. To quote the paragraph in full:

“38. The mother was the first to inform the Investigating Officer of her marriage with the stepfather on 8.8.2023[1]. When asked if she had informed the father about the marriage, the mother told that it was the children who told the father. C then reported to the Investigating Officer that he asked the father that he would like to attend the mother’s wedding in the registry office at the City Hall, yet the father refused and said to C that the time was father’s schedule. C said that he was indeed not occupied at that time but just stayed home. S, however, did not have such a report. S told the Investigating Officer that she did not attend the wedding because there was no ceremony. S said the moving parents would have the ceremony later on because they have to save money for legal fees. C said the same about saving money for settling the legal fees.”

84.  Ms Cheng has then said in her report that:

“In light of the disputable incident and report from C in paragraph 38, the investigating officer tended not to give weight to C’s account of the father’s involvement in the disputable reports from the moving parents.”

Under cross-examination, She gave this extraordinary explanation, she says due to the various version of this event from C and T and F, she says:

“And I would like to add that C’s version is different from the stepfather’s version regarding the incident on 17 June. Therefore, I think the incident is quite controversial. And therefore I could not give weight to C’s view on his father.”

85.  Furthermore, M’s counsel asked Ms Cheng on her change of view from the SIR as she now says in the USIR that the relocation is motivated by M’s desire to exclude the Children from F, and one of the reasons she came to this view is also due to paragraph 38. When asked why, Ms Cheng repeats the different versions she heard on this matter, and says:

“It was very confusing …. Therefore regarding the incident on 17 June, whether the children were speaking the truth or telling a lie, I think that the whole incident was very confusing and controversial. Therefore, regarding C’s view on his father regarding the father’s involvement in their day to day life, I cannot fully accept what C had said and I have doubt.

Clearly Ms Cheng did not answer the question. When asked why she reported on everyone’s version of events, but she did not ask M; she says after C told her about this incident, “I did not have enough time to interview the mother again”, and then says her report has to meet a deadline. I find this hard to accept, she has taken a complete about-turn in her views, and yet cannot find the time to ascertain from the very person she should speak to verify what happened on that occasion; and upon which she relied to say (1) she cannot give weight to what C said and (2) she concludes M’s relocation plan is to exclude the Children from F.

The need for Children to understand social, legal and financial system of the locations?

86.  In the first SIR, Ms Cheng says that C is “mature and approachable”. Then in the second SIR, she states that both Children stated their wish to join M and T in the Philippines, and then say, the Children “lacks the maturity to understand the circumstances surrounding the relocation requests, such as dissimilar social, legal and financial system of the two locations”. I am not of the view that the Children need to understand the “social, legal, and financial systems” of either locations. M’s counsel picked this point up in her cross-examination. Ms Cheng first qualified “mature” in her first report to mean “he was mature in building a relationship with me. He accepted me”, and also confirmed that they had a “mature conversation” together. And then said when he got to know him, she then said that she would not describe him as being mature “in a broad sense”. With further cross-examination, Ms Cheng conceded that these social, legal and financial systems are difficult for the Children to understand, and that the lack of understanding of these topics is not a reason for relocation not to happen.

Recommendation for sole care and control

87.  It is quite bizarre that in not supporting relocation, Ms Cheng recommends that the sole care and control should be maintained for the F. When asks why she made this recommendation, she says:

“… From what I see, even though the father has the sole care and control, they would have arrangements to enjoy equal time with the children. From what I see, the father is willing to communicate and discuss with the mother regarding daily care decisions. If the father maintains a sole care and control as of now, and since the father-son relationship is fragile, there is grounds for the father to maintain sole care and control.”

Ms Cheng is aware that there is a de facto shared care and control arrangement in place since January 2023. She must also be aware that the parties’ proposals are to keep this arrangement should the relocation application not be granted. M now also has a bigger residence for the Children than before and has employed a domestic helper. It is clear to me that M is primary carer of the Children, F has been busy at work, and been said by the Children to be often absent (despite F’s attempt to improve on this between the two SIRs). I am of the view that Ms Cheng’s recommendation for sole care and control to the F has no reasonable basis.

88.  Overall, I find the two SIRs to be imbalance and lacking in important information. While I will accept some of the information collected by Ms Cheng through her interviews with various people, I find her analysis and assessment to be disappointing and unhelpful. I have therefore decided to place little weight on the recommendation of the report.

Is the application genuine and not motivated by M’s desire to exclude F from the Children’s life

89.  M’s desire to relocate stems from T finding a job position in Manila. It is clearly not motivated by M taking away the Children and wishing to excluding them from F’s life.

90.  F has criticized M that her conduct has led him to believe that she can influence the Children and stop them from contacting him. I do not see any evidence supporting F’s contention.

91.  The SIR and USIR state that while C relationship appears to have decline prior to the hearing, F relationship with S has improved somewhat.

92.  M argues that if she has affected the Children to think of F negatively, then S’s attitude towards F would have also worsen, but it appears to have improved as F made more effort to be available to the Children between the two reports.

93.  I also hear evidence on M and T’s co-parenting efforts, I accept these evidence and find M and T to be credible. I am therefore of the view that M’s application is not motivated by her desire to exclude F from the Children’s lives.

Is the application realistic and found on proposals well researched and investigated

Some of these factors were covered under the ISIR.

Accommodation

94.  The ISIO reports that M intends to live across the road from their intended school. The location has proximity to hospitals, recreational and social activities. It is in a safe and peaceful area and is near to a business district area with a high presence of police visibilities in security.

95.  M has provided photos of her intended residence in her third affirmation, which is 5 minutes away from her proposed international school for the Children.

Schools

96.  F says M has been vacillating in her choice of schools for the Children. After some research and speaking with T’s friends in Manila, she settled on an international school in Manila.

97.  Contrary to the F’s contention, I do not see an issue with M ongoing research on finding the right school. It shows that she is not just providing a list of schools, but making an effort to find what suits the Children best. M took the Children to visit the Philippines and the school in October 2022.

Financial

98.  M works and intends to continue to do so remotely. With this relocation application, she is also rightly asking F for maintenance for the Children.

99.  The ISIO interviewed T in Manila, it is reported that he has financial benefits from his employment which will cover 75% of the Children’s school expenses. That said, it is the parties’ responsibility to support the Children, not the stepfather’s.

Care Plan

100.  M says she plans to stay at home for the first 6-12 months. The evidence also suggests that she has a job which allows her to work remotely from the Philippines. T told the ISIO that he has flexibility in his work and can work from home on Mondays and Fridays.

101.  F attacks her to say that there is no more information beyond this; and that M and T have no other support network in the Manila.

102.  M is a hands-on carer, from the evidence I have before me, I am of the view that she will continue to be the primary carer of the Children, supported by T. M does not require help in Hong Kong except a domestic helper. External help in the Philippines can come from local domestic helpers or an expanding circle of friends and contacts.

My finding

103.  I find M’s relocation plan well researched and thought through; there were limited cross-examination on this at trial; except for F saying that M did not elaborate enough on her care plan. I accept that M took time to decide on the right school, this should not be criticized. I also accept that she will not be working for the first 6-12 months to care for the Children, with the assistance of their stepfather who will also have long weekends to spend time with them. I am of the view that M’s plan stands unchallenged.

Is the F’s opposition motivated by genuine concern for the future of the Children’s welfare or is it driven by some ulterior motive

104.  F’s opposition comes from his love for the Children, and his unwillingness to see them leave. This was probably the basis of his enquiry about the safety of Manila and of M’s care plan. This is understandable.

105.  However, some of F’s opposition arises from his increasing distrust of M which started only after the litigation. I find his allegations of M not facilitating access and affecting his relationship with the Children not substantiated by evidence.

To what extent would that detriment be offset by extension of the child’s relationship with the maternal family

106.  This issue does not apply. M’s extended family is not in the Philippines.

What would be the impact on the M on the refusal of her realistic proposal?

107.  In her proposal, M says she will stay behind to be with the Children if relocation in disallowed; in her examination in chief, she has said that she does not think the Children will be fully cared for otherwise, and she will not be happy if she cannot see them all the time. She then acknowledged that it will be a strain on her marriage.

108.  M has quoted the case of Re TC and JC (Children: Relocation) [2013] 2 FLR 484 where Mostyn J reviewed the authorities of Poel, Payne, K v K and Re F. In particular, Mostyn J examined the Court's approach to subparagraph paragraph 11(c) of his judgment, which deals with the impact on the relocating parent if leave is not granted, and is important to bear in mind when considering this factor:

[12] Factor (c) of the guidance always looms large and is particularly problematic, both in principle and in practice. It is a significant feature in this case, as will be seen. Discussing this factor in Re AR (A Child: Relocation) [2010] EWHC 1346 (Fam): [2010] 2 FLR 1577 (at para [12]) I stated:

‘The problem with the attribution of great weight to this particular factor is that, paradoxically, it appears to penalise selflessness and virtue, while rewarding selfishness and uncontrolled emotions. The core question of the putative relocator is always “how would you react if leave were refused? The parent who stoically accepts that she would accept the decision, make the most of it, move on and work to promote contact with the other parent is far more likely to be refused leave than the parent who states that she will collapse emotionally and psychologically. This is the reserve of the Judgment of Solomon, where of course selfishness and sacrifice received their due reward.’

I do not resile from these views but the paradox does not make the problem any easier to solve. The impact on the mother if her realistic proposal is rejected is a fact which has to be recognized whatever its psychological origin. I have to take the parents as I find them and if one finds himself as a result of my judgment to be a victim of his virtues then that is a cross which he will have to bear in the interests of his children.”

109.  The predicament that M will face is that her husband is in Manila working, and she may well have to shuttle between the two places. Both M and T says they want to start a family and M staying behind in Hong Kong will pose certain challenge to this plan. This factor stands out in this case compared to other relocation cases in that the consequence of not granting leave will result in placing M and T in a long distant relationship which will cause substantial strain on M. This will impact on her emotions and wellbeing, and will in turn impact on her parenting and her physical and emotional availability to the Children. C, in particular, being very close to M and a sensitive child, will also be unhappy. I also have some concern that C may turn to blame this on F, and also affect their relationship.

110.  The strain that M will have will also be exacerbated by the financial difficulty that she will be placed under. She has said that it would be unaffordable for her and T to maintain two homes, and the travelling back and forth will also cause extra financial burden.

111.  I am of the view that the impact of a refusal of M’s application will negatively affect the Children’s best interests.

Will the granting of the Relocation Application be detrimental to the F and his future relationship with the Children

112.  This point is heavily stressed by F’s counsel, who claims that F’s relationship with C has deteriorated and he blames M for this.

113.  F has not shown any evidence to link M to C’s behaviour. There can be various reasons why C acts the way he does. C at his age, is clearly capable of arriving at his own decision on how he feels about the situation he is facing, parents fighting over with whom he and his sister will live, the uncertainty of their future residence, the query he has about his F of whether his improved time with the Children is merely for the sake of the investigation officer; the continuing difficulty he has in speaking with him. None of this have to do with the M.

114.  I do not accept this argument, I agree with M’s contention that if she has been obstructive in the relationship, then S will also display the same reaction to F, but the USIR does not show this.

115.  There has always been positive co-parenting before the relocation discussion, and from the evidence before me and at trial, I am of the view that both M and T will continue to facilitate the Children’s relationship with F.

Other factors to consider

Wishes of the Children

116.  It was reported in the two SIRs that it is the Children’s wishes to relocate to Manila with M and T. Both the Children are very close to M, and they have a close relationship with T. Both of them have indicated that they just want to be with their M.

117.  I am also conscious that M will choose to stay if relocation is not allowed. As I have discounted the SWO’s assessment and recommendation, I decided to meet the Children myself.

118.  I met both the Children on 17 June 2024, transcript of the meeting was provided to both parties, submissions were invited which came in on 2 July 2024.

119.  The Children were accompanied by both M and T, F and A. I met C and S individually. With both Children, I have made it clear to them that what they say will be provided to their parents, and that they are not to be burdened in telling me their views and I have the final say in the decision of whether they go or stay.

120.  C came over as a sensitive and gentle child. He was ready to speak up but what came over very clearly is how tormented and conflicted he is in this state of affairs. Two minutes into our conversation, he was in tears until the very end. The following are some excerpts of the conversation:

a. He says that going to Manila would be an exciting opportunity and a new chapter

b. Then he says, “I’d rather be there with my mom and J” (which is the name he calls T); “I just want to go there with them and they can teach me valuable life lessons”

c. When asked how he feels when he cannot see his father frequently, his answer was “I don’t know how I’d feel to be honest. Yes, I don’t know how I’d feel.”

d. When put to him how he would feel if I were to decide they stay in Hong Kong. He says:

“I think at first I’d feel sad but in the long run, it might be a better decision. Although I want to go, it might be a better decision to stay because I’d rather have both my birth parents than only one.”

“… I like could have left probably before I started secondary school, I probably would have loved to go but I have so much more friends and I started thinking about it more and I thought – and it just clicked and I’d rather stay here and have both my birth parents than only one, and it’s hard because I did really want to go and I want to keep J in my life but I’d rather have two than one, sorry.”

e. With regard to T, he says

“And I do really want to see T, I want to keep him in my life.”

And towards the end of the conversation, our exchange was:

Court: “Is there anything else you want to tell me?”

C: “I want to live with J but yes, I just want to live with J.”

Court: But then just a while ago, you want to be with your birth parents.

C: “… it’s not that I necessarily want to stay here just that I’d rather have both of them. But I do want J to be – I want to see him frequently, and often and in person, not just in for a call like for the last few months.”

121.  It is clear to me that C is struggling, and it is very painful to watch. I am of the view that there is a distinction between what he told me at the beginning of our conversation when he says he wants to go to Manila with M and T, versus what he says when I asked him his view of staying in Hong Kong. His conflict is apparent as in a 10 minutes conversation, he contradicted himself twice. I am also of the view that words such as “birth parents” and “in my life” are not usual vocabularies of a 13-year-old child. C was evasive when asked about how he feels if not able to see his F frequently, and particularly tearful when talking about not being able to see T.

122.  In this difficult conversation with C, I find that I have to hear beyond his words and to take the cue from his expression and emotion to elicit what he really wants. It is apparent to me that consistent with what the SIRs indicate, it is his wish to go to Manila. Admittedly, meeting the Children is often a challenging decision to make, on this occasion, I find that meeting C in particular has been invaluable in assisting me in this balancing exercise.

123.  C told me that S is shy, S appears only to be a little nervous, and was able to answer my questions clearly. S says that she is excited about Manila, and that the school (which she visited) was nice, and playground was huge. To both the scenarios I gave to her, she says she is “okay” with both. When asked which option she would prefer a little bit more, she says Manila; and she repeats this is because of the school, and that things are cheap.

124.  Both Children understands if relocation is granted, they will see F less frequently. C says he will contact him more, and S is fine with seeing him during the holidays.

Dealing with F’s objection

125.  Further to the issues raised above, I shall deal briefly with some other objections raised by F.

126.  F has questioned the dependency status of the Children to T, this has been resolved by the time of the hearing, visas have now been obtained.

127.  F says the M should have dealt with “emotional support available to the Children in Manila”. Other than the presence of M and T, they have both committed to facilitating therapy sessions for the Children if need be.

128.  I am also of the view that there is no safety concern as this has been dealt with by the ISIR, and the findings therein have not been challenged or proven otherwise.

129.  F says that M’s relocation application is financially motivated. He complains that M expects him to pay 100% of the Children expenses due to the disparity in their income. He then says his own income is approximately the same as that of the total income of M and T. The contribution to the Children’s expenses is as between the parties, the obligation is on the parents and not the stepfather. While access to financial resource maybe a consideration, this is fact dependant; in this case if relocation is allowed, T will be contributing to the Children expenses through the school fees subsidy offered by his employer; even as of now, T is contributing more than half of M’s rental in HK which is being enjoyed by the Children, and F makes no financial contribution in that regard.

130.  F commented on T’s change of jobs over the years, and says there is concern if T loses his job in Manila, as it will affect the Children. To this T has exhibited to his second affirmation the abovementioned correspondences from his Employer. One is a letter from his direct manager dated September 2023 which confirms T’s strong performance at the bank and has passed his one-year probation; and secondly an email in July also from the bank stating that from 2018-2023, 95% of international staff on standard fixed term appointment were converted to regular appointment (i.e. of indefinite duration). There is no crystal ball to see how T’s future will be with this bank, but I believe the same can be said of F’s position in Hong Kong. Recalling the background to this case, F came to Hong Kong in 2007, then moved to work in Shanghai from 2011-2017, M and C were in Shanghai with him; he then came back to Hong Kong in 2017 and brought the whole family with him. I therefore do not find this factor to be of much weight for my balancing exercise.

Holistic assessment of what is in the best interest of the Children: the Balancing Exercise

131.  I have only one guiding principle in making determination of this nature, whether I am of the view that allowing the Children to relocate to Philippines is in their best interest.

132.  I have decided to grant leave for this relocation application.

133.  In weighing this decision, I place strong emphasis on the relationship between Mother and the Children. I am of the view that M is the anchor to the Children’s stability and emotions. The Children’s wishes to relocate to Manila is because it is where M wishes to go, and where their stepfather is. C has said that he only wants to be with M, and it does not matter where; and S wants to be with M, C and T. In my meeting with C, it is also very clear how important T is to him, he has rated T 9.5 out of 10 in the closeness of their relationship.

134.  On this point, I am mindful of the Welfare Checklist guidance in the need to look at the ascertainable wishes and feelings of the child concerned in the light of his age and understanding; the child’s physical, emotional and educational needs; and the nature of the relationship of the child with each of the child’s parents and with other persons. I am convinced that the home that M and T will build for the Children in the Philippines will be caring and nurturing, which is important for their settling in a new environment, and on-going growth.

135.  M has said that if relocation is not allowed, she will stay in Hong Kong. This means that M, who has out of love for her Children, chooses to place their needs above her own, will not leave them behind to go to Philippines to be with her new husband. As mentioned above, I am very mindful that this will have a devastating effect on M and her relationship with T, her emotional stress, the financial strain, all of which will have repercussions on the Children.

136.  I find no issues with M’s relocation plans; and despite there is not an immediate circle of care support, this is a factor that can be resolved if need be. I am also convinced that both M and T will facilitate on-going relationship with F, although both parties will have to work through the scars that this litigation has left behind.

137.  There will also be no issue with F travelling to see the Children. He has said in his Form J that he would see the Children every three weeks if they move to the Philippines; he has the means, and Manila is a short flight away. M’s proposal on holidays gives him more of the holiday time with the Children as he requests.

138.  M says that no matter whether relocation is granted or not, there will be a maintenance application. No doubt a matter for further legal proceedings unless the parties can come up with some agreeable compromise.

The Order

139.  The M’s application for leave to relocate the Children to the Philippines is therefore granted. This is effective immediately.

140.  For the avoidance of doubt, the Order made on 20 September 2022 granting joint custody of the Children to the parties, do stand.

141.  The Order made on 22 August 2023 with regard to the shared care arrangement of the Children do stand until the date of M’s relocation with the Children to Philippines, whereupon the care and control of the Children is granted to M.

142.  The access arrangement after relocation shall be as per paragraphs 4 and 5 of M’s proposal dated 25 September 2023.

143.  M’s application for maintenance in paragraph 4 of her Summons be adjourned for directions before a Master if so advised.

144.  I make no Order as to Costs. This to be a Costs Order nisi to be made absolute within 14 days of this Order.