CN v. LYP

FCMC 2915 / 2020

[2023] HKFC 73

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 2915 OF 2020

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_____________________________________________

JUDGMENT
(Children Relocation to Singapore or Mainland)

______________________________________________

A.  INTRODUCTION

1.  The Petitioner (“Father”) is a Singapore national. While he was working in Shenzhen in 2013, he met the Respondent (“Mother”), who is a national of Mainland China. They got married in 2015. Their daughter, A, was born in the Mainland in the same year. Their son, B, was born in Hong Kong in 2019 while the family was staying here.

2.  The divorce petition was presented in May 2020. Both Father and Mother wanted to move back to their respective hometowns with the children, A and B (the “Children”), who were aged 7 and 3 at the time of the trial.

3.  Mother took out a Summons on 6 December 2021 seeking an order for permanent relocation of the Children to the Mainland China. Father took out a Summons dated 7 February 2022 seeking an order for their relocation to Singapore permanently.

4.  Three Social Welfare Reports dated 20 April 2021 (“1^st SIR”), 28 January 2022 (“2^nd SIR”) and 22 August 2022 (“3^rd SIR”) respectively were prepared by Ms Lau, the Social Work Officer.

5.  There are two international social investigation reports.

(1)  Ms Chew prepared an International Social Investigation Report dated 11 July 2022 in English (“Singapore ISIR”) on the suitability of a possible relocation of the Children to Singapore.

(2)  Ms Ching prepared an International Social Investigation Report dated 9 August 2022 in Chinese (“Mainland ISIR”) on the suitability of a possible relocation of the Children to Mainland China, specifically Dongguan.

6.  Father, Mother and Ms Lau gave oral evidence at trial. Ms Chew and Ms Ching gave evidence at trial by VCF.

B.  BACKGROUND FACTS

7.  Father is 37 years old. He was born and raised in Singapore. In 2012, he was employed by a company in Singapore as an investment manager which required him to spend substantial time in Hong Kong and Mainland China.

8.  Mother, aged 33, was born and raised in the Mainland China. She completed the second year of secondary school in 2004. She used to work as a waitress in restaurant from 2006 to 2008, a management staff in a factory from 2008 to 2011, and a marketing head of a pub from 2011 to 2013.[1]

9.  The parties were acquainted in Shenzhen in 2013 and they started dating. They were married in Hunan, China in December 2015. A was born in July of the same year.

10.  The family briefly stayed in Singapore in early 2016. They then moved to Hong Kong in May due to the requirement of Father’s job. Mother and A stayed in Hong Kong as Father’s dependents. They lived in a rented unit in Tsing Yi (“FMH”) from 2016 to 2020.

11.  B was born in Hong Kong in January 2019.

12.  Both A and B are citizens of Singapore by descent. A is a citizen of the Mainland China. B is a Hong Kong citizen.

13.  In 2017, Father joined another company. Between August 2019 and May 2020, he pursued a full time course for a master’s degree on business administration at the Hong Kong University of Science and Technology. Upon completion of his degree, he worked at a private equity firm where he was offered a 5-month internship until October 2020.

14.  In January 2020, the family went to the Mainland China to visit the Children’s maternal grandparents. As Father was required to attend class in Hong Kong, he returned to Hong Kong earlier on 28 January 2020. It was agreed that Mother and the Children would return one or two days later, that was on 29 or 30 January 2020.

15.  Mother did not return to FMH with the Children on 29 or 30 January 2020. Father said that he did not suspect anything as he was under the impression that Mother wanted to spend more time with her maternal family in the Mainland. Under cross examination, Mother said that she had told Father that she would stay a few days in her sister’s home.

16.  On 2 February 2020, Mother messaged Father through WeChat asking Father to bring her milk powder for B. Father then found out that Mother returned to Hong Kong with the Children without telling him. They stayed at second sister’s (“Second Sister”) home in Yuen Long (“Sister’s Home”). Mother said in the WeChat message that she wanted to stay with Second Sister because someone would prepare meals for them there, but she had no assistance on child care when she stayed in the FMH. Father was unhappy. He asked Mother several times to return to the FMH with the Children, Mother refused.

17.  In around February 2020, schools in Hong Kong were suspended due to the spread of Covid-19. Father considered that it was in best interest of A to continue education, he proposed to arrange A for study in Singapore.

18.  Mother returned to FMH on 11 March 2020. The next day (12 March 2020), when Father was away from home, Mother took away the Children’s identity documents and travel documents (including Singapore passport, Hong Kong passport etc.) without Father’s knowledge, and then went to Sister’s Home. Father confronted Mother on the same day at Sister’s Home. They had a serious argument. Mother refused to release the Children’s documents. Mother also refused to return to the FMH. At that time, the parties had serious difficulty in communicating with each other. Mother’s keeping of the Children’s travel documents led to the problem on the renewal of A’s Hong Kong visa which was due to expire in November 2020.

19.  Under cross examination, Mother said that she took the travel documents because she had to arrange for B’s vaccination, but not because of her worry about the possibility of the Children being sent to Singapore by Father.

20.  Between 28 January 2020 and 13 March 2020, Father had limited access to the Children in Sister’s Home.

21.  During the period between March 2020 to December 2021, while Mother remained contactable, Father said that he was not able to have access to the Children because of the difficulty to establish effective communication with Mother. Father said that abusive messages were sent to him and voice messages from A were sent to him on Mother’s phone asking for money on a few occasions. Father had sent messages on matters such as renewal of the Children’s visa, but there was no reply. Father was not allowed to visit the Children at the kindergarten and had no access to the Children during this period.[2] Mother said that she had tried her best to assist Father in having access with the Children, but she had not provided particulars of her assistance.

22.  Father petitioned for divorce on 14 May 2020 because he felt abandoned by Mother, and he wanted to gain access to the Children.

23.  In around early May 2020, the tenancy of the FMH expired. Father moved out from the FMH. Father said that before he left the FMH, he obtained the agreement of his neighbour to forward him mails and messages left for him and the family.

24.  Due to the Covid-19 pandemic, Father was unable to secure full time job in Hong Kong. He returned to Singapore and studied another master’s degree in November 2020.

25.  In September 2020, Mother moved out with Second Sister and the Children to a new place in Hong Kong without informing Father.

26.  A’s dependent visa in Hong Kong was due to expire in around November 2020. At that time, Mother was assisted by the school social worker of A’s kindergarten, Ms Leung. Ms Leung contacted Father once by phone in September 2020. Father told her that he could not assist in the application for A’s visa renewal because Mother kept the Children’s travel documents. According to Ms Leung, Mother refused to pass the travel documents to Father for visa renewal as she was worried that Father would arrange the Children to go to Singapore.[3]

27.  Father said that he had made three separate applications to the Immigration Department on 7 October, 20 October and 2 November 2020 for renewal of A’s Hong Kong visa. However, all three applications could not proceed as A’s travel documents were kept by Mother and not released to Father.

28.  At 3:56 pm on 6 November 2020 (one day before the expiry of A’s visa in Hong Kong), Father received a call from Ms Leung. Ms Leung told Father that he was required to attend the Immigration Department immediately to sign certain documents for renewal of A’s visa. Father said that as the notice from Ms Leung came too late, he could not go to the Immigration Department at that time.

29.  A’s visa could not be successfully renewed. Mother had not informed Father of the whereabouts of the Children. Father had, by 2 letters from solicitors dated 4 February 2021 and 30 September 2021 enquiring Mother, among others, the whereabouts of the Children. Mother had only responded through solicitors on 11 October 2021 stating that B was in Hong Kong, and A was studying primary 1 in the Mainland China. The name of A’s school was not provided to Father until in her affirmation dated 14 March 2022.

30.  It was also subsequently discovered that A was left unschooled between November 2020 and August 2021. She had stayed in Hunan for some time. Mother had removed the Children out of jurisdiction to Dongguan from August to October 2021 without informing Father or the court.

31.  In around December 2021 (the time when Mother took out the relocation application), Father started to have video access with the Children. It appeared that the access was not smooth.

32.  A was under the impression that Father abandoned the family with a step-mother in Singapore and was displeased. A became distant from Father. Father denied having any relationship with other female. This was accepted by Mother at trial.

33.  Father had difficulty to have a meaningful video access with B as the mobile phone was often only put on the table showing the ceiling. Father also found that B addressed him as “uncle” instead of father.

34.  With encouragement of the Court during the trial, a physical access between Father and B was arranged after court hours. I was told that the access went smooth and B was taught to address Father as his father.

35.  At the time of the trial, Father was working as a product manager in Singapore earning about HK$38,430 per month. Mother was staying with B at her sister’s residence in Hong Kong. A, who has no right to stay in Hong Kong, was studying in Dongguan and residing with her maternal grandparents.

C.  THE LAW ON RELOCATION

36.  The legal principles on child relocation are not in dispute. In summary,

(1)  the best interest of the child shall be the paramount consideration in a relocation application;

(2)  there is no presumption in favour of or against primary carer or non-primary carer applicant;

(3)  the reasons why a parent applies for the relocation of the child is one of the factors to be considered in the overall assessment;

(4)  the court shall give due consideration to the wishes of the minor, having regard to the age and understanding of the minor and to the circumstances of the case;

(5)  the court shall also give due regards to materials including the report of the Director of Social Welfare available at the hearing;

(6)  the protocols, including those commonly referred to as “Payne principle/guidance[4]” and “welfare checklist[5]” are tools designed to assist in coming into a decision. They are to be regarded as guidelines that provide a structural framework in the holistic assessment of what is in the best interest of the child, but they do not dictate the outcome of a case.

(See: Section 3(1) of Guardianship of Minor Ordinance, Cap. 13; ZJ v XWN [2018] 2 HKLRD 644 [17] – [23], [30]; BA v BL [2019] 4 HKLRD 23 [4.14]; H v W [2021] HKCA 733 [31]; R v A [2022] HKCA 89 [14])

37.  The Court of Appeal in H v W, supra, has summarised the “Payne guidance” at [32] as follows:

(1)  Is the applicant’s proposal genuine and realistic in the sense that it is not motivated by some selfish desire to exclude the respondent from the child’s life?

(2)  Is the respondent’s opposition motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive?

(3)  What would be the impact on the applicant, either as the single parent or as a new spouse of a refusal of his/her realistic proposal?

(4)  The outcome of the appraisals in (2) and (3) must be considered in the overriding review of the child’s welfare (or in terminology used in Hong Kong, the child’s best interests) as the paramount consideration.

38.  The “welfare checklist” are set out in the Children Proceedings (Parental responsibility) Bill which is yet to be passed. Nonetheless, it has been commonly used by the court as guideline or aide-mémoire in considering matters relating to minor child. The checklist is not an exhaustive list, nor a list to be mechanically went through to dictate the outcome. (H v N [2012] 5 HKLRD 498, endorsed by the Court of Appeal in ZJ v XWN, supra [25]).

39.  The factors set out in the “welfare checklist[6]” are:

(1)  the ascertainable views of the child concerned (considered in the light of the child’s age and understanding);

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

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

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

(5)  the child’s age, maturity, sex, social and cultural background and any characteristics of the child that the court considers relevant;

(6)  any harm that the child has suffered or is at risk of suffering;

(7)  any family violence involving the child or a member of the child’s family;

(8)  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 the child’s needs;

(9)  the practical difficulty and expenses of the child having contact with a parent, and whether that difficulty or expenses will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(10)  the range of powers available to the court under [this Ordinance] in the proceedings in question;

(11)  any other fact or circumstances that the court considers relevant.

D.  CURRENT ARRANGEMENTS FOR THE CHILDREN

40.  By an order dated 28 February 2022, the court granted interim joint custody of the Children to Father and Mother on their consent. The interim care and control of the Children was granted to Mother, with a restriction that Mother could not remove B out of Hong Kong without leave or written consent of Father.

E.  THE SIRS AND ISIRS

E1.  Legal Approaches

41.  The social welfare officers are used to be described as the eyes and ears of the court. Their reports are important materials for the court’s consideration. The judge should give due regard to the recommendations in the reports, but is not bound to accept them. It is the duty of the judge to carefully consider all the information available and make the decision according to established principles and guidelines.

42.  In H v W, [2021] 2 HKLRD 1251, the Court of Appeal summarised the authorities as follows:

“39. … The 1^st of these was W v W (A Minor: Custody Appeal) [1988] 2 FLR 505 in which it held amongst other things that although it was entirely within the Judge’s discretion whether or not to accept the recommendation of the welfare officers, the Judge, if he differed from it, should indicate in his judgment his reasons for doing so, and furthermore, when minded to depart from the welfare officers’ recommendation, the Judge ought to consider all the information available and the recommendation should be carefully explored in cross-examination by the representatives of the parties.

40. The 2^nd case was Re A (A Minor) (Children: 1959 UN Declaration) [1998] 1 FLR 354, in which Thorpe LJ had held amongst other things that it was important that the Judge should afford the court welfare officer an opportunity to consider any misgivings the Judge might have, or the direction of his thoughts, so that the court welfare officer could comment up on them.

41. This was reiterated by Thorpe LJ in the 3^rd case Re W (Residence) [1999] 2 FLR 390, in which he had held amongst other things that judges were not entitled to depart from the recommendation of an experienced court welfare officers without at least reasoning that departure, and that the Judge ought to have expressed his misgivings about her approach to the court welfare officer before giving judgment, providing her with the chance to respond.

42. In the 4^th case Re R (A Child) (Residence Order: Treatment of Child’s Wishes) [2009] EWCA Civ 445, by a majority of two to one, it was held unless there were strong reasons to do otherwise, a judge minded to depart from the clear-cut recommendation of an experienced CAFCASS officer should test any misgivings with the officer in the witness box before reaching a final decision. Ward LJ had dissented and held that the case fell within the Judge’s discretion and his conclusion based on his view of all the child’s needs are not plainly wrong.

…..

44. In 王 v 韋 (CACV 153/2012, [2013] CHKEC 162), Kwan JA, as she then was, had referred to [22] – [24] of WSM v FSY (CACV 35/2004, [2005] HKEC 1151, 27 July 2005) and reiterated that a social investigation report is not to be regarded as a kind of “special” material information, nor is a recommendation in a social investigation report a legal presumption which requires a rebuttal, and that in each case, the Judge has to make an independent assessment after considering the facts of each case and to decide whether to accept part or all of the recommendation/s, or not to accept any part of the recommendation/s at all, and ultimately, the decision must be in the best interest of the child. Kwan JA had further pointed out in her judgment that those UK decisions did not lay down any procedures or legal principles which were set in stone, or that any departure therefrom would then be considered an error in law, and that generally, if a judge had any reservation towards the recommendations in any report, it would be appropriate for the Judge to raise this with the officer, so that the officer had a chance to consider and to respond, although she considered that it was not appropriate in the case before her to do so.

45. In a more recent case YSYM v LHB [2020] HKCA 586 (22 July 2020), Kwan VP in [81] of her judgment had further pointed out that in a case where a social welfare officer had been following the case for years and was very familiar with the circumstances, the officer’s views and recommendations should be accorded due consideration and the court should be circumspect in departing from them without sufficient and cogent basis.”

(emphasis in bold added)

E2.  Father’s plan

43.  Father’s proposed plan for the Children’s future care arrangements if they relocate to Singapore is as follows[7]:

(1)  Father’s main plan would be for the Children to stay in his four-room apartment where he currently lives alone.

(2)  Father plans to share the master bedroom with B as he is still young and requires care, while A can have a room for her own. Another option would be that the Children will share one spare bedroom. Other arrangements may be made to suit the Children’s needs and to assist them in better adjustment.

(3)  The apartment of the paternal grandparents is generally spacious and could be tidied up for the stay of the Children.

(4)  Father would take on the main role of meeting the Children’s daily needs, providing for them, supervising them, parenting, discipline and guiding the Children in their studies. He could arrange with his employer to have part of his works done at home so that he could have more time to take care of the Children.

(5)  The paternal grandparents would play a supportive role in supervising the Children while Father was at work. The Children may stay at paternal grandparents’ place for part of the day for caregiving and supervision. Aunts of the Children could also provide additional support in terms of supervision if required or when the main caregivers were not available, and guidance in studies and in playing with the Children.

(6)  Paternal grandmother has always been a housewife. Paternal grandfather used to be a civil servant but have since retired. He keeps an active lifestyle. He cycles and continues learning as he goes for courses. Apart from occasional complaints of joint pain from paternal grandmother, the paternal grandparents were reported to have no other medical issues.

(7)  With the paternal grandparents’ age and physical limitations in caring for 2 young children in mind, Father intends to get the school bus transport for A, and if there is a need, they may consider hiring domestic helper to support the physically demanding tasks. As B’s childcare would likely to be nearby their home, there are no anticipated issues for the paternal grandparents’ support with fetching B.

44.  As to the education of the Children,

(1)  it has been verified by Ms Chew with the local primary school personnel and principal that A’s registration with the primary school has been accepted and she has a guaranteed place in the school. Father was required to renew the leave of absence for A yearly to continue to hold that space. The school will continue to hold A’s place from primary 1 to primary 6. A can start school immediately when she returns to Singapore.[8]

(2)  Father had indicated special interest in registration with a few pre-schools that he had shortlisted for B. Some of these schools have a waiting list, there are also other private pre-school options that Father had shortlisted have immediate vacancies[9].

45.  As the Children are Singapore citizens, they can be adequately covered for the education and healthcare/medical costs if in need.[10]

E3.  Mother’s plan

46.  Mother plans to reside at the residence of maternal grandparents in Dongguan if the Children relocate to the Mainland.

47.  At the time of the trial, A was in Dongguan, living with her maternal grandparents in a three-bedroom premises (“Dongguan Premises”). The Dongguan Premises is owned by Second Sister. The maternal grandparents are living there for free. The Second Sister paid the management fees and the utilities expenses.

48.  The maternal grandmother is the primary carer for A when she is staying in Dongguan while Mother is staying in Hong Kong with B. A is sharing a bedroom with maternal grandmother while the maternal grandfather is using another bedroom. The overall living condition was reported to be clean, with generous space, sufficient light, air and facilities.[11]

49.  If the Children relocate to the Mainland, Mother plans to stay in the same bedroom with the Children. She plans to work at a factory. The maternal grandparents would assist in the daily routine of the Children. Mother would be responsible for the supervision of the Children and their studies. Mother said that she was the primary carer of the Children since their birth, she has confidence that she could take good care of the Children with the support of maternal grandmother.[12]

50.  A would continue to study in a primary school in Dongguan. She took school bus to and from the school. According to the school teacher, although A’s academic results in primary 1 was not very satisfactory, she had great improvement after she received further tuition from the teacher. A stayed at school after class for assistance in homework. Generally, she got along well with the classmates. The teacher said that Mother was cooperative and cared for A. A said that she was happy studying in Dongguan.[13]

51.  Mother plans to enrol B with a private nursery near Dongguan Premises with a view to joining the same primary school with A.[14]

52.  In terms of finances, Mother is receiving a monthly maintenance of HK$6,000 from Father since January 2022. She has no other income nor savings. She plans to work at a factory in Dongguan, estimated to have a basic monthly earning of about HK$5,790 for work from 8 am to 6 pm with 4 days holiday each month. If she does more overtime works (up to 10 pm per day), she could earn up to about HK$11,580.

53.  The maternal grandparents have no employment income. Their major income source is the monthly contributions from their 3 daughters (Mother’s three elder sisters) of about HK$4,700 in total, and their monthly retirement funds (退休金) of HK$935.

54.  The maternal grandmother said that she has a personal savings of about RMB 200,000 (but she did not want to disclose the exact amount) and the maternal grandfather has a personal savings of about RMB20,000.[15] She spent about HK$2,900 per month for meals and daily necessities.[16]

55.  Both A and B do not have “hukou” (戶口) in Dongguan. Thus, they could not enjoy the social benefits in Dongguan. They could only attend private schools. Both Mother and maternal grandmother said that they do not require local welfare services.[17]

56.  According to Mother[18],

(1)  The monthly school fee for A is about HK$10,740 (including school bus, books, meals and other miscellaneous fees). This is currently paid by her three elder sisters.

(2)  Mother is paying the other expenses of A, including tuition fees, extra-curricular activities expenses and school medical insurance payment, in the sum of about HK$4,900.

(3)  The school fee for B would be about HK$8,100 and other regular expenses of HK$3,490 per month. According to Mother, B’s school fees will be temporarily covered by Second Sister. There is no plan to enrol any extra-curricular activities for B.

(4)  Mother’s living expenses was estimated to be about HK$2,300.

E4.  Relationship between Mother and the Children

57.  Mother has a good relationship with the Children. It was observed by Ms Ching that A was excited during the video conversation with Mother, and Mother respects A. A said that she liked to be with the maternal grandparents and she missed Mother and B.[19]

58.  Ms Lau's observations on the interaction between Mother and the Children are:[20]

“19. Observation on the interaction between the mother and [A] was conducted by video call of WeChat while the observation on the interaction between the mother and [B] was conducted at the playroom of the investigating officer’s office.

20. [A] was eager to share her school life with the mother, such as, her money was lost at school. The mother showed concern to her and taught her to seek support from the teacher. Besides, the mother also reminded [A] to complete homework before playtime. The interaction between the mother and [A] was smooth. The mother said that she had maintained contacts with [A] through video call of WeChat nearly daily.

21. The mother and [B] played Lego in the playroom and laughed spontaneously. The mother-child interaction was observed to be relaxing. During the process, the mother accompanied [B] to play different toys, such as toy cars, and that [B] responded to the mother’s instruction and concern immediately, including tidying up the toys and wearing face mask properly. He was observed to be attached to the mother.”

E5.  Relationship between A and Father

59.  On the relationship between Father and A, Ms Chew has the following observations and remarks[21]:

“6.2 [A] did not wish to talk/engage with Father during the access; she verbalized that she preferred to be watching television. She also said that she had nothing to talk about, did not feel like talking today, and had finished talking. Father was visibly upset by A’s initial responses. However, Father waited patiently for [A] to be engaged again and continued to speak with [A], slowing pacing his questions to her. [A] continued to be relatively unresponsive to Father. Father spoke with [A] in Cantonese during the session.

The phone was with [A], and in the middle of the access she placed it on a platform, making the camera face the ceiling. After Father commented that he could not see her, she took the phone up again and presented her side view, with little response towards what Father was saying to her. Towards the end of the access, she left the phone on the platform, the screen showed the ceiling and it seemed that [A] walked off to another location.”

…..

“7.1 Father share that he has a closer relationship with [A] as he was very involved in her life when she was younger, back in Hong Kong. However, Father also shared that [A] seems to have some resentment towards him stemming from her understanding of Father’s period of absence from her life and the current situation.

7.2 When the worker asked [A] about Father (in Father’s absence), she recalled Father bringing her to the playground and to eat nice food when she was younger and shared that she was closer to Father in the past, compared to now. When probed more about her understanding regarding Father and Mother’s situation, [A] shared that she is unsure.

7.3 She shared that she does not like Father now and feels angry at Father as he did not accede to her requests for red packets and presents and feels that Father is petty. She would like Father to accede to her request. She compared this situation with how she receives presents, gets red packets, and enjoys the food from Mother and maternal relatives/extended family.

7.4 [A] recalled that she used to call Father over the phone many times in the past and was not able to reach him, and she was upset. However, she couldn’t recall when this happened and where Father was at that point of time. [A] does not understand Father when he chooses to speak in English during access and that partly contributed to why she does not want to talk to him. In the access that was observed, Father spoke in Cantonese, which [A] shared that she could understand what Father was saying but does not know how to reply in Cantonese.”

(emphasis in bold added)

60.  The statement of a previous closer relationship between Father and A can also be found in the 1^st SIR:

“21. … [A’s K1 class teacher said that] [A] was escorted to and from school by the father when [A] was studying in K.1 in the school year of 2018/19 and the father participated into school activities also, such as “Story papa (故事爸爸)”. [A] was mainly escorted to and from school by the mother since early 2020. …”

61.  In the Mainland ISIR, Ms Ching reported that A described the happiest event she had with Father was when Father celebrated her birthday and bought her present. She was disappointed that Father had not acceded to her request for taking her and younger brother out, and she thought Father did not care them. She said that she was happy this year as Father bought her birthday present. Father’s present was not something she wanted, but she had not told Father her preference, as in her view, even if she told Father, Father would not know how to purchase the gift[22].

62.  In the 3^rd SIR, Ms Lau described the interaction between Father and A as follows:

“17. During the observation session, [A] held smiley face and shared her daily activities with the father while the father also concerned [A] who was encouraged to learn more knowledge, including English, so that she could make friend with foreigners etc. The interaction between the father and [A] was natural. Approaching the end of the video call, [A] laid her head on the table and alleged that she was tired thus not willing to talk. In general, the father said that he maintained contacts with [A] regularly through video call of WeChat.”

(emphasis in bold added)

E6.  Relationship between B and Father

63.  B left Father when he was 1 year old. He did not have an opportunity to develop a relationship with Father.

“7.5 Father shared that he may not have a strong rapport and relationship with [B] as he was unable to be physically present with [B] during his growing up years. However, there were moments of positive interaction and connection observed between Father and [B] during access.”[23]

64.  Ms Chew has the following observation on the interaction between Father and B:

“6.4 Father was observed to bring similar items that [B] was holding into video access to connect with [B], i.e. remote control, biscuits. [B] responded and smiled during the access in response to Father’s engagement. When [B] brought the biscuit to the screen seemingly to show and offer it to Father, Father responded and played along to pretend to eat it. [B] was able to connect with Father, although generally less conversant and unable to answer questions posed to him.”[24]

(emphasis in bold added)

65.  Ms Ching could not ascertain from B his relationship with Father because B was distracted by toys and had not given any response to Ms Ching’s question.[25]

66.  Ms Lau stated in the 3^rd SIR that :

“18. Through video call of WeChat, the father talked to [B] patiently though [B] had not sit still. [B] hided himself at the back of chair and then smiled to the father. The father developed different topics to maintain dialogue with [B] and concerned him. [B] responded to the father with stable mood. At the end of the observation session, [B] said bye bye “uncle” (叔叔) to the father.”

(emphasis in bold added)

67.  Father was upset that B did not recognise him as his father.

E7.  Sibling Relationship

68.  The sibling relationship between A and B is good.

“22. Observation on the interaction between [A] and [B] was made through video call of WeChat. [A] told [B] repeatedly that she missed him so much while [B] held smiley face to [A]. Their positive interaction and good siblings relationship was observed.”[26]

E8.  Support from paternal and maternal extended families

69.  The paternal grandparents and the maternal grandparents are supportive to the care of the Children.

70.  The maternal grandmother said that she will take care of the Children’s daily routines when Mother is at works. Mother will be responsible for the Children’s studies and supervision. It was also observed that A has a good relationship with maternal grandparents in Dongguan.[27]

71.  The paternal grandparent are willing to care for and provide supervision support for the Children:

“8.4 Paternal Grandparents expressed similar concerns shared by Father about the children’s education arrangements and hope that they can be relocated back and be educated in Singapore. They are willing to care for and provide supervision support for the children. In terms of caregiving and living arrangements, they shared that these arrangements can be worked out and would not be an issue. They might also consider hiring a Domestic Helper to provide additional support for caregiving. Aunts can also be roped in to support the children when they are available, and Aunts are reported to be supportive of the children’s relocation as well.”[28]

E9.  Children’s Views on Relocation

72.  B is too young to express his view.[29]

73.  A expressed the following view on relocation to Ms Chew[30]:

“8.1 When worker checked in with [A] on her views on relocation, she expressed that she does not wish to relocate as she is not sure if her academic results would be affected with the language that she would have to learn and adapt to in Singapore. She mentioned that she is doing well academically in her school right now and worries that if she is unable to get 100 marks etc. She based this on her experience when she came to Singapore that she had difficulties in understanding what the people here are saying (language barrier).

8.2 [A] also shared her concerns that if she relocates to Singapore, she is unsure if she would still be able to contact Mother. She shared that she would not feel happy to relocate to Singapore to live with Father.”

(emphasis in bold added)

74.  In the 3^rd SIR, Ms Lau reported that[31]:

“[A] said that she liked to continuously live in Mainland China where she had lots of friends. She said that she had video calls with the father and the mother regularly.”

E10.  Conclusion of the social welfare officers

75.  Ms Chew concluded that Father had displayed commitment in making plans for the Children in terms of citizenship and education matters. He displayed a strong ability to plan ahead, and an ability to act upon the plans. He also has adequate resources in his current financial circumstances to support the Children. Ms Chew further emphasised in [12.3] that the Children would benefit from a continual relationship with both parents and both parents would need to adopt a more collaborative stance for co-parenting and strengthen the communication of joint decision making regarding the arrangement of the Children.

“12.1. The interaction observed between [A] and Father seem to portray that they currently share a slightly distant relationship. However, [A] remembers sharing a closer relationship and there might be a good chance of mending the relationship with Father. There were more positive interactions and engagements observed between [B] and Father during video access. Father noted and shared that there are improvements in the interactions between the children and himself overtime. Father’s continual efforts to keep at connection with the children despite the challenges of engaging them is noteworthy.

12.2. Father have also displayed commitment in making plans for the children in terms of renewal of Visa/citizenship and education matters. He has put in a substantial amount of consideration to meet the children’s needs and displays a strong ability to plan ahead, and an ability to act upon plans. He also has adequate resources in his current financial circumstances to support the children. However, while Father’s and Parental Grandparent’s focus is largely on the quality of education that the children receive, it would also be helpful to explore the emotional needs of the children with and beyond the relocation period. For the emotional needs of the children, Father intends to take time to foster a closer relationship, give time for the children to adapt and be patient with them. Father will need to play a very active role and help the children during the transition.

12.3 The children would benefit from a continual relationship with both parents and both parents would need to adopt a more collaborative stance for co-parenting and strengthen the communication for joint decision making regarding the arrangements for the children.”[32]

(emphasis in bold added)

76.  Ms Ching concluded in [79] and [80] that A was suitably care by her maternal grandparents. The living environment was safe and appropriate. She had adjusted to the studies at school, and maintained good relationship with teachers and classmates. She maintained close contact with the parents through electronic means. If the Children are to relocate to Dongguan, Mother should increase her income by work, so as to provide basic protection for the Children. In the meantime, Mother should also balance her time between work and family, and allow time to accompany the Children.

77.  Ms Ching recommended in [81] that Father should actively share his life with the Children, and encouraged Father to visit the Children in Dongguan or bring them to the place where Father lives.

78.  The findings and recommendations of Ms Lau in the 3^rd SIR are as follows:

“29. Currently, the father is seeking to relocate [A] and [B] to Singapore and the mother is seeking to relocate [A] and [B] to Mainland China. From observation and the information gathered, both [A] and [B] are under proper care of their mother and maternal grandparents respectively. Their daily life were stable and satisfactory with regular routine. Maintaining the status quo is helpful and important to the healthy growth and development of the children. Concerning the father’s child care plan with his parent’s support be enlisted, it is considered feasible but [A] and [B] have to adjust to the new living environment.

30. From the information gathered above, both the father and the mother had shown their concerns to [A] and [B]. If they could shoulder their parental responsibilities over the children continuously and develop co-parenting relationship, the parent-children relationship could be maintained which was beneficial to the children’s development.”

(emphasis in bold added)

79.  Ms Chew and Ms Lau emphasised the importance of co-parenting and joint decision by the parties on matters concerning the Children. They considered that it is in the best interest of the Children to do so.

F.  OPEN PROPOSALS

80.  Before the trial, Father put forward open proposals on access. Father proposed that if his application for relocation is allowed, the Children will relocate to Singapore with him, Mother has the following access:

(1)  Term Time Access: During term time, Mother may have day access during school days from after school to 7 pm, and overnight access from Saturday 9 am to Sunday 12 pm. When Mother is not with the Children, there will be electronic access of 1 hour between 8 pm and 9 pm on every Monday, Wednesday, Friday and Sunday (such arrangement should be reciprocal for Father when the Children are with Mother).

(2)  Holiday Access: the long holiday will be split 50:50 between Mother and Father. The long holiday in Singapore are (i) June break (4 weeks) and (ii) November/December break (6 weeks). Mother may take the Children out of Singapore to Dongguan or other destinations during her holiday access to the Children. The final arrangements to be subject to extra-curricular activities that might take place during school holidays.

(3)  Special Occasions Access: on special occasions such as Mother’s birthday, the Children’s birthdays, Mother’s day etc., Mother is generally welcome to travel to Singapore to spend the special occasions with the Children, either with Father’s family or separately, with detailed arrangements to be agreed between Mother and Father. Alternatively, Mother has electronic access with the Children for not less than 30 minutes at a time to be agreed between Mother and Father.

(4)  Travel arrangements: if either parent intends to take the Children out of Singapore to Dongguan or other destinations for traveling, (i) the travelling parent shall provide the travel itinerary at least 1 month in advance and the flight and accommodation details at least 2 weeks in advance; (ii) the travelling parent should drop off/pick up the Children at Singapore Changyi Airport for the handover, alternatively, a family member as agreed between Mother and Father in advance pick up or return the Children to their place of residence in Singapore; during the travel, there will be an electronic access of not less than 30 minutes daily with the non-travelling parent.

(5)  On information sharing, Father to (i) provide a shortlist of schools prior to application for Mother’s review and comments; and (ii) regularly provide Mother with the latest school report cards/school notices/information on school events and extra-curricular activities.

(6)  Mother is welcome to join the Children’s school events, either physically or remotely if possible and if she wishes to.

81.  Father proposed similar access arrangements be granted to him if Mother’s relocation is allowed and the Children will relocate to Dongguan, subject to the following corresponding changes:

(1)  Holiday Access: the split is an overall 50:50 basis, and subject to the school calendar or public holidays in the Mainland China.

(2)  In regard to special occasions, such as Father’s birthday, Father’s day etc., Father shall endeavour to spend time with the Children physically, subject to his work commitments. Alternatively, Father has electronic access with the Children for 30 minutes at a time to be agreed between Mother and Father.

(3)  On travel arrangements, Mother to facilitate the Children’s visa applications for travelling if necessary. The handover will be at a destination to be agreed or the Children’s place of residence in Dongguan.

(4)  Father would be keen to be involved in the Children’s school events, either physically or remotely if circumstances so allow.

82.  Mother made the following open proposal on Father’s access in the event her application is successful:

(1)  Video access for half an hour on every Monday, Wednesday, Friday and Sunday evenings starting from 8:30 pm.

(2)  Staying access of half of each of the 3 long holidays, namely Christmas and New Year, Easter and summer holidays. The staying access can take place at Dongguan, Singapore or Hong Kong at the option and costs of Father. During such staying access, Mother should be permitted video access four times a week on every Monday, Wednesday, Friday and Sunday at 8:30 pm.

83.  Mother proposed that if Father’s application is allowed, she should be given the same access arrangement that mirror the above arrangements with the exception that the costs and air fares of the staying access be borne by Father.

84.  After hearing the social investigation officers’ evidence at trial and their views on the Children’s adjustment in Singapore for the transition period, upon enquiry of this court, Father put forward further open proposal (“Father’s Proposal for Transition”) overnight to address the issues on the Children’s adjustment, including a plan for Mother to stay with the Children in the initial period to help the Children to ease into the new environment, together with a plan for the Children to get to know Singapore generally and participate in English enrichment courses. The proposal is as follows:

“1.1 Time & Duration

a) The transition arrangements shall start from 2 months before the start of the next upcoming school term, and shall last for 3 months in total.

b) For reference, the upcoming school terms are as follows: See Attachment 1

o Term 1: 3 January 2023

o Term 2: 20 March 2023

o Term 3: 26 June 2023

o Term 4: 11 September 2023

1.2 Preparation, Travel & Accommodation

a) F shall assist M to apply for a short-term visit pass (STVP) for M’s entry and short-term stay in Singapore for social visit for a duration of no less than 3 months.

b) F shall purchase air tickets for [A] and [B] to depart from Hong Kong, and air tickets for M to depart from and return to Hong Kong. F shall also arrange local transportation from/to Singapore Changi Airport.

c) F shall secure suitable accommodation for M and the Children with a lease of no less than 3 months within XX town (i.e. the town of F’s current accommodation). See Attachment 2.

d) F shall notify XX Primary School (i.e. where F has previously retained a place for the benefit of [A]) that [A] will commence her studies, and secure suitable kindergarten for [B] at least 1 month before the start of the school term.

1.3 Detailed Arrangements – 1^st Month

a) The Children shall stay with M at M’s temporary accommodation, and F shall have overnight access to the Children from Saturday 9 am to Sunday 9 pm.

b) In the first 2 weeks of arrival

o Sight-seeing activities: F to arrange for M and the Children to visit amusement parks and attractions.

o Tourists spots such as: Universal Studios, Adventure Cove Water Park, Singapore Zoo, Jurong Bird Park, Gardens by the Bay etc.

o F and F’s family members (i.e. F’s parents and siblings) will join M and the Children.

c) In the next 2 weeks of arrival

o F shall arrange for [A] to attend English study camps. See Attachment 3.

o Study camps offered by the British Council typically takes place from Monday to Friday, 9 am to 1pm, and participants enrol on a per week basis.

o F and/or F’s family members shall provide logistical support.

1.4 Detailed Arrangements – 2^nd Month

a) The Children shall stay with F at F’s accommodation.

b) M shall have day time access and overnight access to the Children as follows:

o Day time access: from 3 pm to 7 pm

o Overnight access: from Saturday 9 am to Sunday 9 pm

c) F shall arrange for the Children to attend English enrichment courses (such as speech & drama, phonic & reading, etc.) at least once per week. See Attachment 4.

d) In addition, F shall arrange private 1-to-1 English tuition as appropriate

o Intend to take place on Mondays/ Wednesdays/ Fridays, for up to 2 hours a day

o Flexible arrangements depending on the Children’s condition

e) F and/or F’s family members will bring the Children to explore the neighbourhood, visit schools, and participate in fun activities (i.e. playgrounds, swimming, outdoor activities).

1.5 Detailed Arrangements – 3^rd Month

a) The Children shall stay with F at F’s accommodation.

b) M will have day time access and overnight access to the Children as follows:

o Day time access from after school to 7 pm on Tuesdays and Thursdays

o Overnight access: from Saturday 9 am to Sunday 12 pm.

c) The Children to commence a full-time education.

d) The Children shall continue to attend English enrichment courses at least once per week. In addition, [A] shall continue to receive private 1-to-1 English tuition on Mondays/ Wednesdays/ Fridays, for up to 2 hours a day.

1.6 Detailed Arrangements – 4^th Month & thereafter

a) Access arrangements shall revert to that of the Open Proposal.

b) The Children to continue to attend English enrichment courses and/or English tuition until they are proficient in English (as recommended by a social worker).

1.7 Budget & Financial Support (estimates)

[Father listed the estimated costs including air ticket, accommodation, study camp, enrichment classes, English tuition for [A], tickets to theme parks and attraction, and financial support for M at a total sum of SGD 10,790 for 3 months, that is a sum of SGD 3,597 (HKD19,681) per month].

1.8 Other matters

o F to engage the service of social worker(s) to assist with language development, social, and emotional needs of the Children.

G.  DECISION

85.  Relocation of the Children out of the jurisdiction is inevitable in the present case. The Children will either relocate to Dongguan with Mother or to Singapore with Father.

86.  I am satisfied that both parents care for the Children.

87.  Having considered the evidence, including the reports, there are the following pertinent issues:

(1)  financial sustainability of Mother’s plan, especially bearing in mind the Children’s educational expenses in Dongguan;

(2)  any hindrance on the Children’s development of a meaningful relationship with both parents and co-parenting;

(3)  emotional needs of the Children under Father’s plan;

(4)  A’s view.

G1.  Financial Sustainability of Mother’s Plan

88.  Mother has no income or savings. As Ms Ching pointed out, if the Children relocate to Dongguan, Mother has to earn income by work to provide the Children with basic protection.

89.  According to Mother’s plan, the Children and Mother will reside in Second Sister’s home in Dongguan. It appeared that they will stay there for free. There is however no evidence on the Second Sister’s commitment in this relation.

90.  Since the Children do not have “hukou” in Dongguan, they do not enjoy the social benefits there.

91.  According to Mother, the monthly school fees and other regular educational expenses for A are HK$15,640. When B starts to attend kindergarten, his monthly school fees and regular educational expenses are HK$11,590. These make a total of HK$27,230, which is about 71% of Father’s current income of HK$38,430. Even if Mother works in the factory and earns the basic income of HK$5,790, the total educational expenses are about 61% of their total income of HK$44,220. There are also other general living expenses to meet. B’s school fees will increase if he starts the primary school. On the present income level of the parents, I have serious doubt on the financial sustainability of Mother’s plan.

92.  On top of the accommodation, Mother relied on her sisters to cover the school fees and regular expenses of A and B when he starts kindergarten. However, no evidence was adduced on the financial condition of her sisters or their ability and commitment to make provision for the Children’s needs in the long term.

93.  In Singapore, the Children are entitled to education at a highly subsidized rate, as well as healthcare and other public services. Ms Chew concluded that Father has adequate resources in his current financial circumstances to support the Children under his plan.

G2.  Development of meaningful relationship with both parents and co-parenting

94.  The development and maintenance of a meaningful relationship with both parents are important to the Children. The desirability to practice co-parenting was emphasized by the social investigation officers.

95.  While both parents have to make efforts to achieve co-parenting, generally, the parent who has the care and control of the Children, thus is more conversant with the Children’s affairs, shall take an active role to, for example, promptly share the Children’s affairs and discuss the same with the other parent, encourage and facilitate the Children to develop a meaningful relationship with the other parent.

96.  Father has fairly acknowledged his appreciation on Mother’s contribution in the upbringing of the Children. He kept Mother informed of matters concerning the Children. He openly made proposal on sharing with Mother important matters of the Children, such as schools shortlisted for interview, report cards, school and extra-curricular activities, etc. Father was flexible in the implementation of his plan to take into account Mother’s involvement in the growth of the Children.

97.  Father is willing to involve Mother to help the Children’s transition if they relocate to Singapore. Father’s Proposal for Transition was well considered and addressed the Children’s emotional needs during the transition. Father is receptive to involve Mother and agrees to pay for the additional costs and expenses, including Mother’s expenses during the transition, bearing in mind that the estimated monthly costs under the proposal for transition are about 50% of Father’s monthly income.

98.  Mother, however, is not as ready to acknowledge Father’s role in the care of the Children. She claimed that Father did not make any contribution to the care of the Children. When she was referred to the 1^st SIR about Father’s previous involvement in the care and school activities of A while he was at work and/or pursuing full time studies, Mother dismissed it by saying that it was just for the period when she was pregnant with B. This is in contradiction with the 1^st SIR which stated that Father escorted A to and from school in the school year 2018/2019. B was born in January 2019. A was escorted by Father to and from school after B was born. Further, according to the 1^st SIR, A was mainly escorted to and from school by Mother since early 2020. This matches the time when Mother left the FMH with the Children in about February 2020.

99.  Mother did not seem keen to involve Father in the Children’s life or to consult Father on important decision of the Children. In February/March 2020, when Father raised the concern about school suspension in Hong Kong and suggested that A shall continue her education in Singapore, Mother did not respond directly to Father. Instead, she took away the Children’s travel documents without notice to Father.

100.  Mother said under cross examination that she took away the Children’s travel documents because she needed to arrange for B’s vaccination, but not because of her worry that Father might take the Children to Singapore. I find that Mother is not truthful in making this assertion. Firstly, it was contrary to what Ms Leung had said. Secondly, I do not see why Mother had to take away B’s Singapore passport and Hong Kong passport for vaccination purpose. B ought to have his birth certificate to prove his identity. Thirdly, I do not see why Mother had to take away A’s travel documents for arranging B’s vaccination.

101.  After Mother moved away with the Children from FMH, she decided the residence and school arrangements for A and B without involving or informing Father. She only responded to Father’s repeated enquiries on the Children’s whereabouts through solicitors months later. Further information, such as A’s school, was only revealed when she filed the evidence in support of her present application.

102.  A was involved in parental conflict when she was under Mother’s care during separation. A had sent voice messages to Father on Mother’s phone asking for money. A was 5 years old at that time. She did not understand what had happened between the parents. It is inappropriate to involve a child in the parental conflict.

103.  A was laboured with the misunderstanding that Father did not care for them, and the misinformation that she has a step-mother in Singapore. Under cross examination, Mother admitted that she had told A that Father refused to renew her visa and therefore she had to withdraw from kindergarten in Hong Kong and returned to Hunan. Mother said that she did not know why A thought she has a step-mother. Mother had taken no step to provide A with correct understanding on the situations between the parents or to clarify A’s misinformation. The way Mother handled the renewal of A’s visa application might also have led to A feeling that Father had abandoned her.

104.  Under cross examination, Mother refused to assist Father in mending his relationship with A. She considered it was a matter to be resolved between Father and A.

105.  Mother made no efforts to teach B who his father is. B was 1 year old when he separated with Father. He called Father “uncle” during video access. This was only rectified at the physical access took place in the middle of the trial dates.

106.  As noted by Ms Ching, Mother was only willing to facilitate long holiday access if the Children wish to go. It was only after repeated encouragement from this court at trial that Mother agreed to try and facilitate access even if the Children did not wish to attend. Mother did not seem to be committed to make the attempt.

107.  Under cross examination, Mother refused to go to Singapore to assist the Children in their transition. She said that she was locked up and hit by Father when she went to Singapore previously. This is a strange allegation with no details provided. There was no previous allegation of violence in this case. When further question was asked, Mother simply said that the Children can stay with her, and asked why she has to go to Singapore.

108.  I also have some concerns on the reasons given by A for her displease with Father, viz Father had not given her red packets and gifts as Mother and her extended family had. A is a very young girl. This reflects her immaturity. Better guidance and nurturing from parents are required.

109.  Father’s principled approach in not spoiling A by giving her red packets and gifts despite he was eager to mend his relationship with A, would be a helpful guidance to the Children.

110.  Mother did not respond well to stress. She admitted that in about June 2018 after an argument with Father, she used Father’s credit card to buy herself a gold bangle worth over HK$30,000 which was more than the family’s monthly income at that time. Another time in the same period, after an argument, she left the matrimonial home in the middle of the night and was uncontactable for days. As a result, Father had to bring A to his work place.

111.  Father contended that there is a real possibility that he may not be able to have physical assess with the Children because he cannot enter Mainland China without a visa.

112.  Despite the physical distance between Mother and A since October 2021, Mother has been able to maintain a close relationship with A via video calls.

113.  I would not go so far to say that Mother’s application was motivated by selfish desire to exclude Father from the Children’s life or other ulterior motive. However, having considered Mother’s views and attitude as revealed in her evidence, there is a real chance that the Children would not be able to maintain a meaningful relationship with Father if they relocate to the Mainland.

G3.  Child care and emotional needs of the Children

114.  Father had participated in the care of the Children before separation. As acknowledged by the social investigation officers, Father and the Children have built up a foundation on their emotional attachment.

115.  I have not lost sight of the rather distant relationship between Father and the Children as a result of the separation and the misunderstanding laboured by A. I also note that in the Mainland SIR, A said that she was happy when Father celebrated her birthday. In the 3^rd SIR, Ms Lau reported that A had shown smiley face and shared her daily activities with Father during the observation session. Father also concerned A and encouraged her to learn more knowledge, including English, so that she could make friend with foreigners etc. The interaction between Father and A was natural.

116.  Father was aware of the emotional needs of the Children. He recognised that the relocation would be challenging for the Children. His sensitivity in addressing the Children’s emotional needs could be demonstrated by his reaction to A’s expression of displease with him. He did not push A but patiently waited for her to be engaged. Father was ready to make adjustment to suit the needs of A, for example on the use of language.

117.  Father is entitled to 18 days of annual leave, 6 days of child care leave and work from home arrangements on a case by case basis. Father is ready to utilise his leave entitlements for child care.

118.  Mother would be entitled to 4 days holiday each month in her planned job that requires 8 am to 6 pm work per day. The working hours will extend to 10 pm if she works overtime. Mother’s planned job does not give room for flexibility in child care. If the Children are to relocate to Dongguan and Mother has to commence work, it is unlikely that Mother can devote sufficient time for the care and supervision of the Children.

119.  I agree with Ms Chew and Ms Lau that Father was committed in the child care. He conducted appropriate researches before formulating his plan for the Children, for example on the schooling and the plans for assisting the Children in their adjustment to different living environment.

120.  Ms Chew remarked that “Father’s continual efforts to keep at connecting with the children despite the challenges of engaging them is noteworthy”. Ms Lau accepted that there shall be more physical contact between Father and the Children.

121.  Ms Chew remarked that Father had “put in a substantial amount of consideration to meet the children’s needs and displays a strong ability to plan ahead, and an ability to act upon plans. He also has adequate resources in his current financial circumstances to support the children”. Father had secured and reserved a place for A in Singapore to maintain a continuity of her education, if his application is successful. Father’s readiness and commitment to make plan (and necessary adjustment) to cater for the Children’s needs were also reflected in Father’s Proposal for the Transition.

122.  Father is open to seek assistance from professional assistance.

123.  Father also has the concern that as A is a Mainland citizen and B is a Hong Kong citizen, the difference between the siblings in this regard may create unsatisfactory emotional issue of the Children. If they stay in Singapore, they will have equal legal status and will be able to receive similar treatment. The evidence on different treatments that A and B might face in Dongguan was scanty. I do not place any weight on this concern raised by Father. I accept that the Children have equal legal status in Singapore.

124.  Ms Lau appeared to have preference to maintain the status quo of the Children[33]. For the reasons set out herein, I do not consider it is in the best interest of the Children to simply stay put.

125.  The Children would benefit from a continual relationship with both parents. The parents should continue their efforts in this direction. It will help the Children and it is in their best interest if Mother agrees to help them in the transition and beyond.

G4.  The Children’s Views

126.  In approaching the child’s view, the court has to bear in mind the age and maturity of the child. The older the child, the more seriously the court shall take into account his view. The court shall also consider whether the child’s view was formed with correct or sufficient information.

127.  In S v S (Child Abduction) [1998] 2 HKC 316 at 333B, when the court was dealing with the child’s objection to return, the court stated that there are the following essential elements:

“It is accepted by the parties that under this second issue, the mother has to establish three elements before I can begin to have a discretion not to return. The three essential elements are the child:

(1) must be of a sufficient age at which it is appropriate to take account of the child’s view;

(2) must be of a degree of maturity at which it is appropriate to take account of the child’s view

(3) must express a valid objection to being returned.

I first start with age. Six years is very very young and for me it is really too young an age at which it is appropriate for a court to take account of a child’s view (not preference but objection which carries with it a degree of rationality). Having seen the child and talked to the child today, I am confirmed in my view that he is really too young for his view to be taken into account.”

128.  In YSYM v LHB [2020] HKCA 586, the Court of Appeal quoted what Rix LJ had said in Re R (Residence Order) as follows:

“71. Rix LJ had this to say in Re R (Residence Order) [2010] 1 FLR at §§57 and 58:

[57] The importance of listening to a child once he or she has reached the age of 10 … had been stressed in the authorities. Thus in Re L (A Child) (Contact: Domestic Violence) [2001] Fam 260, [2001] 2 WLR 339, [2000] 2 FLR 334 at 271-271, 347 and 340 respectively, Dame Elizabeth Butler-Sloss P sitting in this court cited with approval Contact and Domestic Violence – The Experts’ Court Report [2000] Fam Law 615 at 624 on the subject of a child’s wishes:

‘… while this needs to be assessed within the whole context of such wishes, the older the child the more seriously they should be viewed and the more insulting and discrediting to the child to have them ignored. As a rough rule we would see these as needing to be taken account at any age; above 10 we see these as carrying considerable weight with 6-10 as an intermediate stage and at under 6 as often indistinguishable in many ways from the wishes of the main carer (assuming normal development). In domestic violence, where the child has memories of that violence we would see their wishes as warranting much more weight than in situations where no real reason for the child’s resistance appears to exist.’

See also Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, [2006] 3 WLR 989, [2007] 1 FLR 961 per Baroness Hale at para [57]:

‘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.’

[58] I respectfully conclude that the judge has erred in not giving any real effect to the child’s wishes expressed in this case. He has referred to them, accepted them, but thereafter essentially ignored them. He has attempted to reason against, and reject the child’s (partial) rationalisation of them. He has in effect wholly discounted them. And yet, the child was a mature and thoughtful child close to the age of 10, who expressed his wishes rationally and, in my judgement, with considerable emotional understanding. Moreover, those wishes, in part natural given his love for his mother and his successful upbringing to date – and therefore to be given all the more attention rather than discounted … I do not understand why these well-evidenced concerns were overborne by a call for greater sophistication: in reality this was little more than a way to reinforce the judge’s conclusion that he would not disturb the boy’s “settled” status.”

129.  In CKFG v WHHK [2022] HKFC 183, HHJ Grace Chan has held that,

“[58] In our case, the elder daughter is 10 years old and the younger daughter is merely 8. The court has reservation that they are mature enough to be able to appreciate what they will have to face in terms of the changes in their life and education if they are to be relocated to England.

[59] Second, I am of the view that they are not equipped with sufficient information before they form any view on the intended relocation. This can be easily demonstrated by their wrong assumption that once when they are relocated to England, they will be living in a big house, like that of their friend in Canada, with their own bedroom, and front yard and back yard. Obviously, the mother has not told them that they would at first have to live in a small bedroom at their cousin’s house upon arriving at England. And even if they are later able to rent their own place, the accommodation suggested by the mother in her affirmation is a merely 2 bedrooms and 1 toilet apartment.

[60] It follows that any view expressed by them to the SWO that they want to live in England is not, on the balance of probabilities, an informed decision, and thus I conclude that I should place little, if any, weight on it.”

130.  B is 3 years old. He is obviously too young to express any views.

131.  A told the social investigation officers that she was happy living in Dongguan, and was happy with the current school. She has concerns on the language barrier, the effect on her academic results and the uncertainty of whether she will see Mother if she relocates to Singapore.

132.  I have to approach A’s view with caution. She is at a very young age (7 years old) and has not yet attained the maturity to appreciate the situation. She admitted that she was unsure about Father and Mother’s situation.[34] She had a wrong impression that Father abandoned them, and there was a step-mother in Singapore. I place very little weight, if any, on her view and preference on relocation.

133.  A’s concerns on the possible issues on adjustment and possible language barrier are understandable. Father is aware and sensitive to these concerns. He is ready to provide the Children with assistance. Father is also ready to seek professional assistance if necessary.

134.  A had demonstrated her strong ability to adapt and adjust to new environments and had good social skill when she moved to Dongguan. Although she separated with Mother for about 9 months or more, she maintained a good relationship with Mother through video access. The physical distance between Mother and A does not affect their relationship.

H.  MIRROR ORDER AND SUPERVISION ORDER

135.  Upon the court’s enquiry, both parties have given an undertaking to obtain a mirror order if his/her application is granted.

136.  Father undertook that if the Children relocate to Singapore, he shall apply for a mirror order in Singapore reflecting the entire order to be made on the issue of relocation and care arrangement of the Children by this court within 42 days of the order, and to provide a copy of the mirror order to the court and Mother within 14 days upon the granting of the mirror order by the relevant Singapore Court.

137.  Father and Mother together gave a similar undertaking if the Children are to relocate to the Mainland.

138.  Father was agreeable to a supervision order of 12 months, with an updated social investigation report and an updated international social investigation report to be lodged into the court prior to the expiry of the supervision order.

I.  CONCLUSION

139.  Having carefully considered all the evidence, I come to the conclusion that it is in the best interest of the Children to permanently relocate to Singapore with Father.

140.  Upon Father’s undertaking to obtain a mirror order in Singapore in terms set out above, I order that the care and control of the Children be granted to Father, with defined access to Mother in terms set out in Father’s Open Proposal and Father’s Proposal for Transition (if Mother agrees to join the Children as proposed). Mother is encouraged to do so to help the Children. Mother shall indicate to Father in writing within 21 days whether she agrees to join the Children during the transition as proposed. If Mother does not agree, Father shall submit to the court (and copy to Mother) 14 days thereafter a revised plan for the transition for the court’s approval.

141.  The target date for the Children’s commencement of school in Singapore shall not be earlier than the September term this year to give time for preparation and transition.

142.  The parents shall consider informing the Children, especially A, together and if necessary, with the assistance of social welfare officer, the effect of this order, including the access available to Mother and the plan to ease the transition for A and B.

143.  There shall be a supervision order of 12 months. An updated social investigation report and an updated international social investigation report shall be lodged into the court not later than 28 days before the expiry of the supervision order.

J.  COSTS

144.  This is a matter concerning the welfare of a child. I make an order nisi that there shall be no order as to costs, to be made absolute at the expiration of 14 days if there is no application to vary.

145.  Mother is legally aided. Her own costs be taxed in accordance with the Legal Aid Regulations.