W, Y v. L, KP

FCMC 4636 / 2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 4636 OF 2015

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J U D G M E N T
(Relocation, care and control /
joint care and control and access)

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Introduction

1.   There are two applications before the court that now require adjudication. The first is a summons dated the 15 December 2015 issued by the Petitioner Mother inter alia for leave to remove the only child of the family out of the jurisdiction of Hong Kong, in order to permanently relocate with him to Shanghai. The child in question CT was born on the XX October 2011. He will therefore turn 5 years of age in October. The Father vehemently opposes the mother’s application. For his part he has filed a summons dated the 19 April 2016 seeking a variation of the original order dated the 7 October 2015 which granted the parties joint custody of CT with care and control to the Mother and reasonable access to him. The Father originally sought an order that care and control vest in him with reasonable access to the Mother. On the second day of trial he amended this summons and asked instead for an order for shared care. He now seeks equal time with CT on a two week on two week off basis.   

2.   In essence the Mother says that she is the primary care taking parent and that in line with established principles she should be given leave to relocate to Shanghai with CT. It is her case that she needs to relocate primarily for business purposes. She also wishes to be closer to her family who are now largely based in Shanghai. The Father for his part seeks to undermine the basis for the Mother’s case generally. He also argues that this was originally a case of genuine shared care and that as a result slightly different principles should apply. Both parties maintain that the other has taken certain positions for strategic legal reasons. The Mother denies that there was ever an arrangement whereby the Father took care of CT for 50% of the time.

The main issues

3.   Given the above it seems that the main issues are as follows:

Should permission be given for CT to leave Hong Kong in order to relocate to Shanghai with his Mother?

How should the Father’s application for shared care be viewed?

In the event that permission is given what arrangements should be put in place for access?

What is in the best interests of CT overall?  

Background

4.   Given the need to hand down this judgment quickly I have taken the liberty of reproducing the Mother’s background in her Opening Submission with some slight amendments as follows:

B. Background    

6.   The Mother is 32 years old.  While she was born in Luoyang, China, her parents and extended maternal family have lived in Shanghai for the last 10 years or so. She was educated from the age of 14 in Australia and attended X University in Sydney, from which she was awarded a double bachelor’s degree in Applied Finance and Commerce Accounting. 

7.   After graduating from University, the Mother went back to her parents’ home in Shanghai for six months before moving to Hong Kong in November 2007 to work for the Y private banking team of an [investment bank].  In July 2008 she co-founded a private property loan and mortgage company in Hong Kong.  The company was successfully listed on the Hong Kong Stock Exchange in December 20XX and the Mother is currently the Chairman and Chief Executive. 

8.   In addition to this company the Mother is also involved in a start-up business in Shanghai, which is a credit lending business. This is intended to become part of the same group as the original business.

9.   The Father is originally from Hong Kong, although like the Mother he attended University in Australia, graduating from Z University.  He has been running his family business which is in the tourism industry, specialising in bringing mainland tourists from China to Hong Kong.  As with the Mother’s career, this has required travel for work between Hong Kong and the Mainland.

10.   The parties met in 2009 in Hong Kong and were married here on XX April 2011.  They separated just two and a half years later in October 2013, when CT was two years old.  The Petition, based on one year of separation by consent, was filed on 20 April 2015.  The Consent Summons giving rise to the Consent Order was filed at the same time as the Petition.

11.   As both parties are financially independent and wealthy it was agreed by the Consent Order that they would each retain their own separate wealth with no further financial provision being made as between themselves.  They are, however, both jointly responsible to contribute to the financial provision for CT until he reaches 18 or finishes full time education.  Notwithstanding that joint responsibility, the Mother has not received any contribution to CT’s expenses from the Father since March 2015, save that the Father has now (in the midst of these proceedings) made one contribution to CT’s schooling expenses in Hong Kong in April 2016.  All other expenses since March 2015 have been paid for by the Mother.

....

16.   As the Mother’s workload in Shanghai increased over the last year or so, she has had to travel there more regularly and for most of these trips she has taken CT with her.

17.   By paragraph 2 of her Relocation Summons, the Mother sought an interim order to regularise the pattern of her travel to Shanghai with CT pending determination of the relocation application.  At a hearing on 21 December 2015, the Court granted an interim order allowing the Mother to remove CT from the jurisdiction of Hong Kong to Shanghai for 5-7 consecutive days per month coinciding with one of the alternate weekends when the Father does not have access.

18.   When the Mother is working, she is assisted in caring for CT by her helper who has been with them since CT’s birth.  The helper also goes with CT when he has access with the Father in order to assist the Father.  The Mother’s mother has also been on hand to help to care for CT whenever they are in Shanghai, and she also travels to Hong Kong for ten days every month to see CT and to assist the Mother.

19.   Both parties have new partners.  The Mother has now remarried and is expecting a baby girl with her husband EL (“E”).  The baby is due in early August 2016 and the Mother’s plan is to have her in Shanghai.  She is, therefore, planning to move to Shanghai by the first week of July 2016.  If the Mother’s application is granted, E will move to Shanghai with the Mother, CT and the baby and they will settle as a family there.

20.   E is in the process of starting his own business in Shanghai, applying for the necessary licences, setting up infrastructures and securing office space.  He is a significant person in CT’s life and has accordingly filed an Affirmation in support of the Mother’s position.  The maternal grandmother has also filed an Affirmation.  As set out above and as made clear by the Social Welfare Report she has played a central role in helping to care for CT since his birth and will continue to do so.

21.   The Father is now co-habiting with his fiancée C, and she has filed evidence in support of the Father’s position.  She is originally from Hong Kong, although she was educated in Australia from the age of 15.  She is 28 and works in her Father’s business in Hong Kong.  She was married once before but this was a short marriage with no children and she is now divorced.  The Father’s Mother has also filed an Affirmation in support of his case.

5.   The Mother was clear in the witness box that if her application was refused that she would remain in Hong Kong with CT and her new husband and as yet unborn daughter. She would oppose any application for shared care.

6.   As indicated above by virtue of a court order dated the 7 October 2015 the parties presently have joint custody of CT, with care and control to the Mother and reasonable access to the Father. The Father is though very aggrieved that the Mother obtained this order and then applied to permanently relocate on the 15 December 2015 – just two months or so after the original order was granted. He accuses the Mother of bad faith in this respect.    

The open proposals and each party’s case

7.   The Father submitted his open proposals at the beginning of the trial and then resubmitted them again with his closing submission as follows:

In the event of relocation

1.   Both parties to acknowledge and undertake to this Honourable Court and each other that:-

(1)   With both of them being custodial parents of the children of the family, namely, CT (“the Child”), a boy, born on XX October 2011, they will consult and confer with each other in relation to all major decisions relating to the upbringing of the Child; and

(2)   If any party intends to take the Child outside Shanghai or Hong Kong for holiday or any other purposes during their respective care or access (whether in Shanghai or Hong Kong), they will give each other not less than 1-month notice in advance of any trip(s) planned, obtain the written consent of the other party, such consent not to be unreasonably withheld;

2.   The Petitioner to undertake to this Honourable Court and the Respondent that she will:-

(1)   Apply within 60 days from the date of this Order for a court order in identical terms to the terms of this Order in the Court in Shanghai, People’s Republic of China and provide a copy of that Order to the Respondent;

(2)   Provide by email the Respondent with copies of school calendar and school reports issued by the school that the Child may be studying at within 7 days upon the Petitioner receiving any such document(s) and keep the Respondent informed of the Child’s academic performance regularly;

3.   The Respondent shall have reasonable access to the Child in the manner as described as follows:-

(1)   The Petitioner shall bring the Child back to Hong Kong at least once every month and the Respondent shall have staying access to the Child in Hong Kong from Friday at 5 pm to Sunday at 6 pm;

(2)   The Respondent shall have staying access to the Child in Shanghai at least once every month from Friday after school to Sunday at 9 pm;

(3)   The Petitioner shall bring the Child back to Hong Kong during each of long school holidays every year (including Chinese New Year, Summer holidays, Christmas and Mid-Autumn) and the Respondent shall have staying access with the Child for not less than 2/3 of those holidays;

(4)   On top of the access pursuant to paragraphs 3(1), (2) and (3) above, the Petitioner shall allow and facilitate the Child to immediately return to Hong Kong in the event of any family emergencies in the Respondent’s family subject to arrangements and details to be discussed and agreed by the parties;

(5)   The Respondent shall have daily access with the Child by way of telephone, FaceTime, WhatsApp or other electronic social networking means for at least 30 minutes every day; and

In the event that relocation is refused

4.   The Respondent shall have care and control of the Child every 2 weeks and the Petitioner shall have care and control of the Child for the following 2 weeks; and

5.   The Petitioner and the Respondent shall split all school holidays equally.

8.   I queried during the hearing whether or not it would be possible for the Mother to obtain a mirror order from the courts in Shanghai. It is my understanding (and I stand to be corrected on this), that it would be very difficult if not impossible to obtain such an order. I have not received any further clarification from the Father’s legal team on this point.  

9.   The Mother for her part set out her initial proposals in her solicitor’s letter dated the 8 April 2016 which she then repeats from paragraph 55 onwards in her second affirmation dated the 15 April 2016 as follows:.

55.1   N [the mother] will relocate to Shanghai around the last week in June 2016 to allow her to get settled before her due date on 5 August 2016 and to prepare everything for when CT arrives.  CT will finish school in HK on 13 July 2016 and should relocate to Shanghai by say the 24th July 2016 to allow him to settle in before commencing school on 3rd August 2016.

55.2   Until N leaves for Shanghai at the end of June 2016, R can continue to enjoy staying access with CT every alternate weekend.  In addition, R [the father] can also have one night non-staying access per week.

55.3   Once N has relocated to Shanghai around the last week in June 2016 until the time CT relocates to Shanghai on the 24 July 2016, CT can stay with R in Hong Kong. This will cover the rest of CT’s term time at school until they break up on the 13 July 2016 and the holiday period thereafter.  During this time R can take CT for an overseas holiday, if he wants to.

55.4   CT will spend the remaining holiday period, that’s from the 24th July until 3rd August --when he starts his new school--with N in Shanghai so he can start settling in.

55.5   As far as future access is concerned, R can come to Shanghai every other weekend and enjoy staying access with CT from Friday to Sunday.  If those visits coincide with a long weekend, R could have access for the extra days as well. N suggests R collects CT from home in Shanghai to start his access visit, whether the access visit is in Shanghai or elsewhere.  N will collect him at the conclusion of the access visit from R’s hotel in Shanghai or wherever they agree is best in Shanghai at the conclusion of his access visit.

55.6   To demonstrate to R that N would like R to see CT as often as is practicable, she also offers R access to CT whenever he might be in Shanghai, even if that is mid-week.  N does not want CT’s school day interrupted in any way, but should R be in Shanghai for business and he is there mid-week, or should R take a few days holiday in Shanghai and he is there mid-week, then R could collect CT from school and have an early dinner with him before he then brings him home. Obviously CT can’t travel during school terms time but N would do her best to ensure CT could see R after school.  If he has an event to attend after school then N would let R know in advance and try and work around that.

55.7   If it is necessary for N to travel to HK e.g. for work and CT is able to come with her (e.g. over a weekend or if there is a public holiday etc), they R can have access to CT during that trip.  N can’t commit to coming to Hong Kong every other weekend, and in any event CT has to live the life of a normal little boy and having his own friends from school in Shanghai to play with and his own social life also has to be factored into all the arrangements.  This is all about him after all.

55.8   For 2016 R can enjoy staying access with CT over the mid-Autumn festival school holiday period from Friday after school to the Sunday of the following weekend so for a total of 10 days.  In 2017 N will spend the Mid-Autumn festival school holiday with CT and then R will have him in 2018 and they can then alternate with N having “odd” years and R the “even” years.

55.9   Going forward, they can split the Christmas vacation period between them, 50/50.

55.10   They can have alternate CNY holidays with CT, starting from CNY 2017 which will be spent with R and CNY 2018 with N and so on.

55.11   School spring holiday - they will split 50/50 going forward.

55.12   Long school summer holiday - they will split 50/50 going forward.

55.13   On days R is not with CT he can Facetime/call CT any time between his 8.30-9.00pm―wherever he is-- and N may do the same when CT stays with R.  This will be really important to N during July 2016 when he would be with R for the whole month. This time has been chosen to encourage CT to get to sleep at a reasonable hour.

55.14   N confirms she has no intention of changing CT’s surname and, for the avoidance of doubt, she will not change CT’s surname without R’s consent.

55.15   N confirms she has no intention of relocating with CT from Shanghai to another country.  In the event that changes, N agrees to give R not less than 3 month’s written notice of any intention to relocate with CT from Shanghai to another country.  N is moving to Shanghai with CT as that is where she believes is best for him and her family.  She really has no intention of moving elsewhere. Should destiny unfold in such a way that relocation elsewhere is contemplated and that move is in CT’s best interest...as after all, this is all about CT...then she will let R know at least 3 months in advance.  Should R object to the move they can talk about it, they can mediate about it, if all that fails they can litigate about the matter.

55.16   It goes without saying that N is happy to involve R in all major decisions when it comes to CT such as education, health, region etc.  N is more than happy to send R CT’s school reports.

10.   It was reconfirmed during the trial that the Mother was not proposing that CT go to Hong Kong each month to have access with the Father as she had originally suggested.

The Father’s case

11.   It was the Father’s case at trial that following the separation that he and the Mother had enjoyed more or less equal time with CT. He confirmed that when the marriage broke down that he had moved out of the matrimonial home and left CT in the care of the Mother. He also said, and this was not really contested by the Mother, that he would return to the former matrimonial home to see CT on a regular basis. CT was only 2 years old when the parties separated.

12.   The Father said that although the parties agreed that there should be joint custody of CT with care and control to the Mother and reasonable access to him that:

... it was eventually agreed and understood between us that CT would spend half of his time each week with the Petitioner, and would spend the remaining half with me. Infact this arrangement had been in place since our separation. (see paragraph 17 of the Respondent’s affirmation dated the 18 March 2016). 

13.   The Father said that it was against this background that the Mother suddenly and unexpectedly announced her desire to relocate to Shanghai only shortly after the original agreement had been reached and only 15 days after the pronouncement of the decree absolute. His belief is that she did not tell him at the time of the divorce that she wished to relocate to Shanghai because she intended to obtain a litigation advantage over him.

14.   In support of his case that the parties had infact been sharing CT’s care on a more or less 50:50 basis the Father produced a calendar from April 2015 which he said was evidence of the time that he had spent with CT. He admitted that this was not a contemporaneous document and that he had compiled it after the event from memory and by looking at photographs etc. It includes holidays and does not indicate the time in the day that CT was picked up and dropped off.

15.   In or about September 2015, when CT was nearly 4 years old it is acknowledged by both parties that CT began to throw tantrums and have other emotional outbursts. As a result of this the Mother decided that there should be a more defined access arrangement. The Father is very aggrieved about this and maintains that this was unilaterally imposed on him for strategic reasons. Since then CT has spent every alternate weekend with the Father and on the weeks when he is not seeing his Father at the weekends he sees him on Thursday evenings. He also spends time with him during the holidays which the parties do share more or less equally and he has also historically had regular contact by WeChat etc.

16.   The Father is concerned that if CT is allowed to relocate with his Mother that he will lose touch with his paternal family. He is insistent that in the event that the relocation is allowed that CT should travel to Hong Kong at least once a month to counteract this possibility and that in addition he should have the lion share of the school holidays.

17.   However his primary case is that CT should split his time between two households on a two week on two week off basis and that the Mother should remain in Hong Kong in order to facilitate this arrangement. No expert evidence was produced by the Father to support his contention that this would be in the best interests of CT – or indeed that CT would be able to cope with such an arrangement. Although the Father confirmed when asked by the Court that he had sought some parenting advice and that he and C had attended some parenting classes it does not appear that they have taken any advice on the advisability or otherwise of imposing this arrangement on CT, who is still very young and who, I accept, has been used up until this point of living with his Mother.     

The Mother’s case

18.   It is the Mother’s case that notwithstanding the fact that she is a successful business woman that she has always been CT’s primary care taking parent. She breast fed him from birth, initially took time off work to nurse him, initially went back to work part time and more recently ensured that CT travelled with her as far as possible when she was required to be out of Hong Kong to tend to her businesses in Shanghai. She accepts that she also relies on other people to help particularly her mother and more recently her new husband E. She also has a dedicated domestic helper to assist her with CT’s care. In addition she acknowledged during the trial the importance of the Father’s role in CT’s life. However it is clear that CT has always lived with her. It is her case that the parties agreed joint custody with care and control of CT to her and reasonable access to the Father, because this was reflective of the reality at the time.

19.   The Mother did not accept the Father’s assertion that they had shared CT’s care on a more or less 50:50 basis up until about November 2015. She confirmed that they had a flexible arrangement, but on her case CT had spent between 5 – 6 days per month on average with the father from separation in about September/October 2013 to April 2015. She agreed that this may have increased when CT was on holiday. She also agreed that access may have been increased generally to about 8 days per month after the divorce petition was issued or possibly more. However she says that there was never any agreement in principle that CT’s care should be split on a more or less 50:50 basis.

20.   In any event the Mother said that this arrangement was changed because it became clear that CT was not coping well with it. He was throwing tantrums, screaming hysterically at school and it seems that both his teachers and the parties themselves became concerned by this turn of events. Indeed it was acknowledged by the Father that he had taken CT to see a psychologist friend who had suggested that CT might benefit from having more structured access schedule. It is of concern that notwithstanding the fact that all parties seem to acknowledge that CT’s behaviour improved once the new access schedule was introduced, that nevertheless the Father has insisted that this was a strategic move by the Mother to reduce his access. For the avoidance of doubt I do not accept this to be the case. It seems to me that sensibly the practical arrangements for CT’s care were changed to suit his emotional development at that time.

Discussion

21.   I must 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.  In addition to the parties themselves I also heard evidence from the Mother’s husband, E and the maternal Grandmother. Mr Coleman SC for the Mother indicated that he did not wish to cross examine the Father’s witnesses namely the Father’s fiancée C and paternal Grandmother. The Father did not elect to call either of them in any event and therefore I have not had the opportunity to see them in the witness box. I have also heard from the Social Welfare Officer Miss L and I also had the benefit of reading an International Social Services Report.  

The Law

22.   Both sides produced very detailed Openings and Closings where the present state of the law in the United Kingdom was discussed at length. This was of some interest to myself and I thank each side’s legal teams for their efforts in this regard. However as things stand at present in Hong Kong this court is bound by the Court of Appeal decision in SMM v TWM (Child: Relocation) [2010] 4 HKLRD. It is of note that in the recent Relocation case determined by my brother Judge, HH Judge Bruno Chan (IDC v SSA (FCMP 158/2011, 17 July 2015) reference was made to this decision in the following terms:

The Legal Principles

20.   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 very helpfully summarised them at §21 of his judgement as follows:

“1) The distinct features of a relocation application are first, the applicant is invariably the mother and the primary carer; second, generally the motivation for the move arises out of her remarriage or her urge to return home; and third, the father’s opposition is commonly founded on a resultant reduction in contact and influence. (per Thorpe LJ at paragraph 27)

2) The two proportions that have been consistently applied by the Courts are, first, the welfare of the child is the paramount consideration; and second, refusing the primary carer’s reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children. (per Thorpe LJ at paragraph 26)

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 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)”

23.   I should add that I accept that, as in the United Kingdom, this approach should be regarded as a guide to the court as opposed to a legal principle which brooks no opposition. Much of the initial criticism of Payne in K v K [2011] EWCA Civ 793 was based on this concern. To that end I think it is worth repeating the following observations made by Lord Justice Moore-Bick in K v K:

85.   Finally, it is necessary to refer briefly to the decision of this court in Re W (Children) [2011] EWCA Civ 345, in which Sir Nicholas Wall P. re-emphasised that in relocation cases judges must apply the criteria and guidance set out in Payne v Payne.  Elias and Lloyd L.JJ. agreed, but it is interesting to see a note of caution appearing in the comment of Elias L.J. that “Payne is binding, to the extent at least that guiding principles can be said to bind a court.”

86.   I accept, of course, that the decision in Payne v Payne is binding on this court, as it is on all courts apart from the Supreme Court, but it is binding in the true sense only for its ratio decidendi.  Nonetheless, I would also accept that where this court gives guidance on the proper approach to take in resolving any particular kind of dispute, judges at all levels must pay heed to that guidance and depart from it only after careful deliberation and when it is clear that the particular circumstances of the case require them to do so in order to give effect to fundamental principles.  I am conscious that any views I express on this subject will be seen as coming from one who has little familiarity with family law and practice.  Nonetheless, having considered Payne v Payne itself and the authorities in which it has been discussed, I cannot help thinking that the controversy which now surrounds it is the result of a failure to distinguish clearly between legal principle and guidance.  In my view Wilson L.J. was, with respect, quite right to warn against endorsing a parody of the decision.  As I read it, the only principle of law enunciated in Payne v Payne is that the welfare of the child is paramount; all the rest is guidance.  Such difficulty as has arisen is the result of treating that guidance as if it contained principles of law from which no departure is permitted.  Guidance of the kind provided in Payne v Payne is, of course, very valuable both in ensuring that judges identify what are likely to be the most important factors to be taken into account and the weight that should generally be attached to them.  It also plays a valuable role in promoting consistency in decision-making.  However, the circumstances in which these difficult decisions have to be made vary infinitely and the judge in each case must be free to weigh up the individual factors and make whatever decision he or she considers to be in the best interests of the child.  As Hedley J said in Re Y, the welfare of the child overbears all other considerations, however powerful and reasonable they may be.  I do not think that the court in Payne v Payne intended to suggest otherwise.

24.    This sentiment was accepted by Lady Justice Black in what has become an often quoted passage from the same case:

140.   Looking back over what is now nearly 40 years of jurisprudence in this area of family law, I have come to a number of conclusions.  I am indebted to my Lord, Moore-Bick LJ for his judgment which, like that of Thorpe LJ, I have read in draft, and in particular for its analysis in paragraph 85 of the approach to be taken to Payne in the light of the conventional treatment of principle and guidance.

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.

With respect I could not agree more.

25.    Other cases have followed in the United Kingdom where they have grappled again with terminology and the correct approach to be taken in these very difficult cases. I do not intend to go through these in any detail save that it should be noted that I do not accept the proposition made by counsel for the Father that I should approach the law in the following manner:

70.   All in all, the overarching threads that run through all 4* recent English Court of Appeal decisions above are:-

(1)   The only test that the court should apply is the paramount principle as to the welfare of the child concerned.

(2)   The application of that test involves a holistic balancing exercise undertaken with the assistance, by analogy, of the welfare checklist, weighing all the relevant factors 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.

(3)   The matters set out at § 40 and § 85 of Payne should be correctly understood as merely guidelines for highlighting some considerations that may (or may not) be relevant to the welfare question, rather than as applicable principles.

(4)   To the extent the Payne guidelines are relevant to the particular relocation application, they should be seen as only part of the aforementioned multi-factorial balancing exercise.

(5)   A mechanical application of the Payne guidelines or factors may amount to an error of law and must be avoided.

(6)   A linear and presumptive approach in favour of the relocating parent is also to be avoided.

71.   The holistic/ balance sheet approach as presented in Re F [2015] should therefore be adopted for the ensuing analysis, and the Payne factors will be subsumed within such analysis insofar as they are relevant to the specifics facts of the present case.

(* The four cases in question are K v K (Children: Permanent Removal from Jurisdiction [2012] Fam 134 (otherwise known as MK v CK); Re F (Relocation) [2013] 1 FLR 645 (Re F [2012]; DF v NBF [2015] EWCA Civ 882 (6 August 2015) (Re F [2015]; Re C (international Relocations) [2015] EWCA Civ 1305 (18 December 2015))

26.    I should also add that although Judges have on occasions, myself included, used a Welfare Checklist to assist them in coming to a decision on children’s matters, that this is not something that has been imposed as yet by statute in Hong Kong. The Welfare Checklist in the United Kingdom is also different from that proposed in our own yet to be passed Children’s bill. 

27.   Consequently although the ongoing debate in the United Kingdom is interesting it seems to me that in a case such as this, I am obliged to continue to follow the guidance provided by SMM v TWM, which in turn relies on Payne, pending further clarification by either our own Court of Appeal and/or Court of Final Appeal. However I accept that underpinning all of this there is one, and only one, fundamental legal principle namely that in coming to a decision on relocation and CT’s practical care, his best interests must be the court’s paramount concern. I will though largely rely on the guidance provided by SMM v TWMin coming to that decision.

Should permission be given for CT to leave Hong Kong in order to relocate to Shanghai with his Mother?

Is the application genuine in the sense that it is not motivated by some selfish desire to exclude CT from the Father’s life?

28.   The Mother wishes to relocate to Shanghai with her new husband E. She was clear and consistent throughout the trial that her reasons for doing so were that she wished to be closer to her family and that she needed to be in Shanghai in order to run her business properly. The Father sought to undermine both of these propositions. For example it was suggested to the Mother that she should delegate her corporate responsibilities and remain in Hong Kong, the inference being that only by so doing could she be a fully hands on parent and that someone else could easily take on her role at work. As an aside I very much doubt that the same questions would be put to a Father who was the Chairman and Chief Executive Officer of a corporate that has been successfully listed on the Hong Kong Stock Exchange. For the avoidance of doubt I do not accept the Father’s arguments in this respect. Further I do not accept that it is reasonable to expect the Mother to stop running her business in the way that she would prefer. She has tried to do what she can from Hong Kong and she has managed to juggle her role as a mother and her role at work to date by travelling up to China with CT on a monthly basis. It will not be possible to do this once CT starts primary school in August. The fact that this is a family funded business is neither here nor there. It does not follow that the Mother is a titular head only. Indeed it is clear that she is not. Infact this is something that was recognized by the Father when he accepted that the Mother was more driven and more successful than he.

29.   In so far as the Mother’s family are concerned again the suggestion is that she has lied, her father is not really ill, her family don’t really come from Shanghai and that this is not really her home. Again the Mother was consistent throughout in her evidence. Like a lot of people from her generation she has lived in a number of different places and cities. She does not originally come from Shanghai and indeed she never claimed that to be the case. But Shanghai is now the place that her family has chosen to base itself. I found nothing improper in what the Mother was saying nor was there any suggestion at all that even if what the Father was saying was true (which I do not accept) that this was somehow motivated by the Mother’s desire to exclude CT from his Father’s life. There is nothing to suggest that at all. Consequently I accept that the Mother’s application is a genuine one. She does not wish to go to Shanghai in order to drive a wedge between Father and son. She wishes to go there so that she can run her business more effectively, develop a new business and in order to be physically closer to her family.   

Is the Mother’s plan realistic, i.e. founded on practical proposals both well researched and investigated?

30.   The Mother’s plan was wholly realistic. It was both well researched and investigated. She had identified three very good schools, all of whom had offered CT places. She also had the choice of two homes.

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

31.   I accept that the Father’s opposition is genuine in the sense that he has “genuine” concerns about CT relocating to Shanghai as set out above and as further elaborated upon in his affirmations. I do not believe that he has any ulterior motive save that he wants to be more intimately involved in CT’s day to day life going forward.

What would be the extent of the detriment to the Father and his future relationship with CT were the application granted?

32.   As will be seen I do not accept that CT’s relationship with his Father need be compromised at all given that Shanghai and Hong Kong are in such close proximity to each other. At present the Father sees CT every other weekend and on Thursday’s after school when he is not having staying access. He is also able to have contact with him daily. If handled appropriately it is hard to see how the Father would really be affected detrimentally by the Mother’s proposed relocation. I appreciate that the Father is concerned that CT may lose touch with his paternal family. Again I do not think that this need necessarily be a concern. 

To what extent would any possible detriment be offset by extension of the children’s relationships with the maternal family and homeland?

33.   Given my comments in paragraph 32 above I do not necessarily need to consider this aspect of the guidance. However for the avoidance of doubt I would expect that CT should continue to see both his extended maternal and paternal family on a regular basis both during the holidays and over some weekends. I acknowledge that CT has a particularly close relationship with his maternal grandmother who I have no doubt he will continue to see on a regular basis whether he is based in Hong Kong or Shanghai.  

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

34.   I accept that the Mother would be very upset if her application was refused. She is about to give birth to her second child. She wishes to base herself in Shanghai which will make life more feasible from a work perspective. She will also have the support of her immediate and wider family if allowed to relocate. The Mother has made it clear that she will not leave without CT. She says, and I accept this to be the case, that it would be devastating for CT to be removed from her for extended periods of time especially as she is about to give birth to a daughter.    

Social Welfare Reports

35.   Recommendations made to the court in social welfare reports, although not binding are very persuasive.  If the court decides not to follow the recommendations made then reasons must be given.

36.   In this case the Social Welfare officer recommended as follows:

43.   Taking into consideration the parents’ view, information gathered from the teachers and caseworker from International Social Service Hong Kong Branch, SWO believed the mother’s relocation application was a genuine one and therefore supported the relocation proposal of the Petitioner.  For the access arrangement, the school long holidays were suggested to be shared on 50/50 basis while the alternate weekends’ staying access and weekdays’ access were also suggested to be continued subject to further discussion between the parties on the details arrangement.  The Petitioner was clear that if her application was refused, she would remain in Hong Kong with CT and would oppose any application to vary care and control.  In views of the Mother’s caring arrangement to CT as well as the very satisfactory and close mother-son relationship, SWO also supported the order in relation to custody, care and control dated 7.10.2015 should remain in effect and variation of order should not be considered at the present stage.

37.   I should add that Ms L was an impressive and unflappable witness and was of great assistance to the court. I do not accept the criticisms made of her by the father’s lawyers in their closing submissions. I accept the recommendations that she has made.

38.   In her updated note to the court dated the 18 May 2016 she added that:

2.   I would like to submit herewith my updated views regarding Respondent’s application to vary the care and control arrangement after having interviews with both parties again on 4.5.2016 and 9.5.2016 respectively as well as reading the 2^nd affirmation of the Respondent.  Taking into re-consideration of the parenting capacity (knowledge about the child, parenting skills etc.), parent-child relationship and emotional bonding, relationship between the child and the significant others (grandparents, step-family member, parents’ intimate partner etc.), the continuity in childcare, parents’ physical & psychiatric health, parents’ work schedule arrangement together with the potential risk and harm to the child, the undersigned Social Work Officer would like to support the order in relation to care and control dated 7.10.2015 be remained unchanged and the recommendation made in the Social Investigation Report dated 28.4.2016 regarding the care and control arrangement shall be maintained.  For better parental cooperation to manage the ongoing issues in the upbringing of the child, service from a parenting coordinator was introduced and it was highly suggested to both parties.

Again I accept what she says in this respect and the recommendations made.    

The International Social Investigation Report  

39.   The International Social Investigation report dated the 21 April 2016 usefully provided independent collaboration of the Mother’s child care plan in Shanghai. It concluded that the plan looked reasonable and suitable and that the living and education arrangements were feasible. I accept that to be the case.

The character of the parties

The Mother

40.   It was an unfortunate aspect of this case that the Father had taken it upon himself to vehemently attack the Mother’s character in what appears to have been a misjudged attempt to undermine her role as a mother. This was very unfortunate. From my perspective the Mother came across as being an extremely bright and articulate woman who has chosen to have a family and to juggle that with her chosen career in a way that is to be applauded and not denigrated. I accept that she has been CT’s primary carer and that she is concerned that CT should continue to have a loving and close relationship with his Father. I very much hope that the parties will now be able to put some of the more negative aspects of this case behind them and move forward in a more positive and constructive way that can only be of benefit to CT as he grows up.

The Father

41.   Likewise the Father presented as being a concerned, although perhaps somewhat misguided litigant. I accept that he is a good Father to CT and that he has a close and loving relationship with him which must be fully maintained. He also appeared to be a bright and capable person.

Conclusion on relocation

Overriding review of all of the competing factors

42.   The best interests of a child are always the courts paramount concern. In this case I accept that CT should relocate to Shanghai with his Mother and new family and that this will be in his overall best interest. I accept that the status quo is more or less as has been described by the Mother. However even if that were not the case it seems to me that it does not follow that a 50:50 shared care regime should be imposed unless it is very clear that the child in question would be able to cope well with such a proposed arrangement and indeed that this would be optimal from his perspective. I do not believe that to be the case. I should add that an independent joint expert’s report may have been of some assistance to the court in this respect. 

43.   In the Mother’s second affirmations she said as follows:

52.   It is crucial for CT to remain living with me.  CT is very excited about meeting his baby sister and he is looking forward to being a big brother to her.  He is sharing my pregnancy very happily.  He strokes my stomach and sees it and the baby growing daily.  He knows E is part of our life and the baby’s daddy.  CT sees himself as part of our family unit, which of course he is.  He knows where we will be living in Shanghai and he expects us to move as a family unit and be together as a family unit.  Both CT and I would both be devastated and extremely distressed if we were not living together in Shanghai.  He must remain in my care and control.  If he was suddenly separated from me and the new baby just as she arrived, I don’t think he would ever be the same and I truly fear he will suffer emotional and psychological trauma.

I would tend to agree with that analysis of the situation. 

How should the Father’s application for shared care be viewed?

44.   Given the fact that I am allowing the Mother’s application to relocate it follows that the Father’s application for shared care must fall away for all of the reasons that I have set out above.    

In the event that permission is given what arrangements should be put in place for access?

45.   As indicated above it is very important that CT should have regular contact with his Father and wider paternal family. Originally the Mother suggested that CT travel to Hong Kong once a month and that the Father should come to Shanghai once a month to visit him. However she withdrew that offer after further consideration and given concerns expressed by the social welfare officer in that respect. I certainly accept that it would not be optimal for CT to travel to Hong Kong unless he was able to enjoy a three or four day weekend. However if one looks at the school calendars put forward by the Mother for consideration it seems likely that with a little bit of imagination it will be possible for CT to visit Hong Kong most months whether that is for a long weekend or for part of a school holiday. It should also be possible for the Father to visit Shanghai at least once or twice a month during term time in order to spend time with him there. The Mother has also said that the Father is also welcome to see CT during the week subject to his normal school and related commitments and this is to be encouraged.

46.   Although I do not accept that the Father should automatically be entitled to 2/3 of all the school holidays I am concerned that he should see CT at regular intervals and consequently I do intend to give him slightly more holiday than the Mother. CT is young and it is important that he sees his Father regularly. I also accept that this arrangement may be changed in 2 or 3 years when CT is a bit older.

47.   What follows is a proposed order for access based on the Shanghai American School calendar. I accept that CT may not attend this school in which event the school holidays and other important dates may vary slightly. I am approaching this on the premise that for the next two or three years it will be important for CT to see his Father on a regular basis. Therefore the intent is that CT should see his Father at least twice a month. I also accept therefore that in the short term this will meant that the Father will have more of the shorter school summer holidays. As indicated above longer term I accept that this arrangement may be altered and a different access routine may be put in place along the lines proposed by the Mother above. There should be a review of these proposals in two or three years depending on CT’s development. I will also give liberty to apply generally in that respect.

Access arrangements for the school year 2016/17

August 2016 

48.   CT will start school on either the 10 or 11 August. The access arrangements for August 2016 shall be as follows:

i)   The Father shall go to Shanghai for access for one weekend to be determined by the parties. In the absence of any agreement to the contrary the Father shall have access to CT from 5:00 pm on Friday the 21 August to Sunday the 23 August at 5:00 pm.

ii)   The Father shall pick up CT from the Mother’s home on Fridays and the Mother shall pick up CT from the Father’s hotel on Sundays. This shall be the arrangement going forward.

September 2016

49.   There is one public holiday on Thursday the 3 September and a professional development day on the 14 September. The Mid Autumn Festival break also begins at the end of the month. There has been no discussion about who will accompany CT on the flights to and fro from Hong Kong. The Father’s proposals assume that the Mother will accompany him; the Mother’s proposals are silent on this point. I anticipate that either the domestic helper will accompany him or one of the other significant adults in his life. The access arrangements for September shall be as follows:

i)   CT shall have a long weekend in Hong Kong for staying access with his Father from Thursday 3 – Sunday 6 September – exact times to be confirmed subject to flights. It is acknowledged that this will necessitate CT taking a day off school

ii)   The Father shall go to Shanghai for access for one further weekend during September on a date to be determined by the parties. In the absence of any agreement to the contrary that shall be the weekend of the 18 – 20 September from 5:00 pm on Friday the 18 September to Sunday the 20 September at 5:00 pm.

iii)   The Father shall have staying access to CT over the Mid Autumn Festival from 5:00 pm on Friday 25 September to Sunday 4 October at 5:00 pm, such access to be in Hong Kong or in another destination by agreement between the parties. Going forward the Father shall have access to CT every Mid Autumn Festival pending further review.

October 2016

50.   Given that CT will most likely have travelled to Hong Kong for the Mid Autumn Festival, the Father may travel to Shanghai for one further weekend during the month of October for access. In the absence of any agreement to the contrary that weekend shall be the weekend of the 23 – 26 October from 5:00 pm on Friday the 23 October to Monday the 26 October at 5:00 pm.

November 2016

51.   Note should be taken of the fact that there are parent teacher conferences this month which presumably the Father will wish to attend and a public holiday on the 27 November. Thus the Father shall travel to Shanghai for access to include the parent teacher conferences and given that CT will be in Hong Kong over Christmas he may also travel to Hong Kong for the weekend over the public holiday.

i)   The Father shall go to Shanghai for access for two weekends during November on dates to be determined by the parties. In the absence of any agreement to the contrary that shall be the weekend of the 6 – 8 November from 5:00 pm on Friday the 6 November to Sunday the 8 November at 5:00 pm and from 5:00 pm on Thursday 26 November to Sunday 29 November at 5:00 pm.

December 2016

52.   The Christmas school holiday is from the 17 December to the 4 January – i.e. a period of 18 days or two and a half weeks.  The Christmas school holiday shall be divided equally between the parties with one party taking the first half to include Winter Solstice and Christmas day and the other party taking the second half to include the Western New Year. 

i)   In the absence of any agreement to the contrary the Mother shall have the first half of the holiday for 2016 and in all even years going forward and the Father shall have the first half of the holiday for 2017 and for all odd years going forward pending further review.

ii)   The Father shall also go to Shanghai for access for one weekend during the first half of December on a date to be determined by the parties. In the absence of any agreement to the contrary that shall be the weekend of the 11 – 13 December from 5:00 pm on Friday the 11 December to Sunday the 13 December at 5:00 pm. It is anticipated that there may also be end of term events during this period that the Father may also wish to attend.   

January 2017  

53.   The Father shall go to Shanghai for access for two weekends during January on dates to be determined by the parties. In the absence of any agreement to the contrary that shall be the weekend of the 15 – 17 January from 5:00 pm on Friday the 15 January to Sunday the 17 January at 5:00 pm and the weekend of the 29 – 31 January from 5:00 pm on Friday the 29 January to Sunday the 31 January at 5:00 pm.

February 2017  

54.   Given that Chinese New Year is a very important Chinese festival Chinese New Year shall be alternated between the parties. In 2017 the Father shall have access to CT over Chinese New Year and in all odd years going forward pending a further review. The Mother shall have the care of CT over Chinese New Year in 2018 and in all even years going forward pending a further review. 

i)   The Father shall have staying access to CT over Chinese New Year from Thursday 4 February to Sunday 14 February, such access to be in Hong Kong or in another destination by agreement between the parties – exact times to be confirmed subject to flights.

55.   The Father may also have access to CT in Shanghai for one further weekend in February. In the absence of any agreement between the parties that shall be the weekend of the 26 – 28 February.

March 2017

56.   The Easter holiday is at the end of March/beginning of April. It is for one week only.

i)   The Father shall have staying access to CT over the Easter holiday from Friday 25 March to Monday 4 April, such access to be in Hong Kong or in another destination by agreement between the parties. Going forward the Father shall have access to CT every Easter holiday on the premise that the holiday is for one week only pending a further review.

57.   The Father may also have access to CT in Shanghai for one further weekend in March. In the absence of any agreement between the parties that shall be the weekend of the 11 – 13 March.

April 2017

58.   There are no additional holidays in April.

i)   The Father shall go to Shanghai for access for one further weekend during April on a date to be determined by the parties. In the absence of any agreement to the contrary that shall be the weekend of the 15 – 17 April from 5:00 pm on Friday the 15 April to Sunday the 17 April at 5:00 pm.

May 2017

59.   There is one public holiday on Monday the 2 May.

i)   The Father shall go to Shanghai for access for two weekends during May to be determined by the parties. In the absence of any agreement to the contrary that shall be the weekend of the 29 April – 2 May from 5:00 pm on Friday the 29 April to Monday the 2 May at 5:00 pm and the weekend of the 20 – 22 May.

June 2017

60.   The school year ends on the 8 June. From the calendar it appears that the children have approximately 9 weeks holiday over the summer. The summer holiday shall be split 50:50 and consideration should be given to how that time should be split – i.e. one week one/one week off, two weeks on/two weeks off etc etc. No further directions will be given on this at this stage. 

Miscellaneous items

61.   The Mother is due to give birth imminently. At paragraph 9 55.1 – 55.4 above she sets out her proposals for CT’s care before the commencement of the school term in August. In the absence of any further agreement between the parties I accept that these proposals are sensible and should be included in the order.

62.   The parties are in agreement that the Mother will provide the Father with copies of CT’s school reports and other related information. This agreement should be included as an undertaking in the order.

63.   The Mother has also indicated that she is open to the Father having access to CT during the week if he is able to spend a longer period of time in Shanghai. This agreement should also be included in the order. In addition CT should have daily contact with whichever parent he is not with between 8:30 – 9:00 pm by either telephone or whatever other electronic means is available. This agreement should likewise be recorded in the order.

64.   It almost goes without saying that the parties should confer on all major decisions relating to CT. The Father should indicate within the next 7 days which of the three schools proposed by the Mother he would like CT to attend. In the absence of any such indication the Mother is free to enrol CT in any one of the three schools proposed. They all seem to be excellent schools. 

65.   The Father has asked that the court order arising out of this judgment be mirrored in Shanghai. It is directed that the parties provide the court with a short written submission on this point within the next 28 days on whether or not this can be sensibly achieved as requested.

66.   The Mother has said that she will not change CT’s surname without the father’s consent and that she has no intention of relocating out of Shanghai but in the event that that becomes an issue she will undertake to let the Father know 3 months in advance. I will hold the Mother to both of these undertakings which should be included in the Court order.

67.   Both parties will wish to travel with CT for holidays and other purposes. Consequently there shall be mutual undertakings included in the order that each party will give the other 1 months notice of any planned trips and that they should seek the consent of the other party to the same such consent not to be unreasonably withheld.

What is in the best interests of CT overall?  

68.   For the avoidance of doubt it seems to me that it is in CT’s overall best interest to relocate to Shanghai with his Mother and to have regular contact with his Father both in Shanghai and Hong Kong. I also accept that it is important that he should be able to visit Hong Kong regularly and to see his wider paternal family on a regular basis.

69.   For the avoidance of doubt the Father’s summons dated the 19 April 2016 shall be dismissed.

Costs

70.   As this is a children’s matter I will make an order nisi, to be made absolute at the expiration of 14 days that there shall be no order as to costs. There shall be certificate for all counsel involved. There shall also be liberty to apply in relation to the proposed access arrangements and generally. Ms L recommended that the parties consider appointing a Parental Co ordinator to assist them going forward. I suggest that they give serious thought to this possibility.