IDC v. SSA

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 158 OF 2011

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JUDGMENT
(Relocation of Child)
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1.  This is an application by the Applicant Mother by way of a summons issued on 2^nd December 2014 for leave to permanently relocate her child Z, a 6-year old daughter born out of wedlock with the Respondent Father and whose sole care and control has earlier been granted to her by this court, from the jurisdiction of Hong Kong to England for a variety of reasons but essentially to pursue a university degree there so as to acquire a career to become financially independent as she is just a visitor in Hong Kong without any visa to work here.

2.  Her application is opposed by the Father who sees it as at best premature on the basis that her planning as to housing and schooling for their daughter as well as her own university course is all very immature which would not be in the daughter’s best interests, and he suspects that the whole application is in fact motivated by her obsession with obtaining an order that he purchase a property for their daughter’s accommodation, something which she has been unable to obtain in Hong Kong and hence her desire to do so in England.

3.  There have already been a long series of litigation between the parties in these proceedings, and it would be relevant to rehearse some of their details first.

Background

4.  The full details of the parties’ background and their litigation can be found in my earlier judgment dated 22^nd January 2013 on the Mother’s application for financial provision for Z, I therefore do not propose to recite all of them here save for the more relevant parts plus those that have transpired since.

5.  The Mother, now aged 36, is a British born in Germany to a British soldier but moved with her family to London in 1987 where she lived and studied arts. Upon leaving school she worked as a fashion model and travelled around the world on her jobs. In 2003 she married a Thai film director and gave birth to her elder daughter N in the following year. In 2006 she divorced her husband and left Thailand to come to Hong Kong with N on a tourist visa where she formed a relationship with the Father, now aged 42 who is also a British having moved to Hong Kong in the 1990s where he has since been running a successful fashion accessories business.          

6.   The parties were never married but cohabited together since late 2006 in the Father’s spacious property at Convention Plaza Apartments with N as well during which the Mother generally remained as a housewife and together with N were essentially dependent on the Father. On 8^th March 2009 she gave birth to Z. The Father can be said to be very wealthy and had provided the Mother and the 2 girls with a lifestyle of very high standard and comfort.

7.   That relationship however ended in late 2010 and the Mother consequently moved with the 2 girls into a rented apartment at Bel-Air, Pokfulam while still being maintained by the Father. In July 2011 she launched these proceedings under Guardianship of Minors Ordinance, Cap 13 (“GMO”) for custody and financial provision for Z during her minority including interim maintenance of not less than HK$180,000 per month and such lump sum and other financial relief as may be deemed appropriate.

8.   The parties were eventually able to agree to have joint custody of Z with her care and control to the Mother and certain defined access including staying access to the Father which were made into an order on 14^th September 2012, but not on the issue over financial provision for Z given the huge gulf between their proposal, when the Mother sought a lump sum of HK$32 million for purchasing a suitable property preferably at Bel-Air to accommodate her and the 2 girls, a further lump sum of HK$1.2 million for renovating the property and for purchasing a car to meet Z’s transportation needs, and a monthly sum of almost HK$175,000 to meet Z’s living expenses as well as her own personal expenses, and for the Father to continue to pay directly Z’s school fees and other educational and extra-curricular expenses, while the Father’s proposal was essentially only monthly sum of about HK$90,000 to cover Z’s living expenses including rental plus reasonable costs of her extra-curricular activities and an annual provision of airfares for her holidays.

9.   As a result the parties went through an acrimonious and expansive 5-days trial in late 2012 during which the major issue was centred over whether the court had any power under the provisions of GMO to make the kind of lump sum order sought by the Mother for the purchase of a property to accommodate Z, and if so whether the Father should do so in the circumstances.

10.   In my judgment delivered on 22^nd January 2013 I found that the court could derive no such power under GMO specifically Section 10(2) for the purpose sought by the Mother, and ordered the Father to pay a total monthly sum of HK$118,000 for Z being HK$93,000 for her living and rental expenses and HK$25,000 for the Mother’s carer allowance, on the basis that the Father shall continue to be directly responsible for Z’s school fees and other educational expenses, extra-curricular activities and holiday expenses (“The Financial Order”).

11.   The Mother subsequently appealed the Financial Order to the Court of Appeal, which on 6^th June 2014 ruled that the court does have jurisdiction to order such a lump sum under Section 10(2)(e) of GMO, but refused to alter the Financial Order. She then sought to appeal to the Court of Final Appeal but her application for leave was refused first by the Court of Appeal on 22^nd September 2014, and then by the Appellate Committee of the Court of Final Appeal on 10^th February 2015.

12.   It was between these 2 leave applications that the Mother on 2^nd December 2014 issued her present relocation summons for leave to remove Z permanently to England as she wishes to return home to London to pursue a degree so as to have a job or career to become financially independent which cannot be achieved in Hong Kong on a tourist visa and without the right to work, and being the primary carer of Z it is therefore necessary for her to bring Z with her in order to be able to continue to take care of her in London where they will be close to her parents and family, while the Father can maintain close and regular contact with Z by telephone, Skype or other electronic means as well as monthly access whenever he is in London and during major school holidays.

13.    The Mother’s application was as noted opposed by the Father who suspects that it was motivated by her obsession for the purchase of a property for Z, and hence after she has exhausted all legal means in Hong Kong, he fears that she now tries to pursue it in London by bringing this application, that in any event it is at best premature and in its planning very immature, and that a move of Z from her Hong Kong home and life without clear and concrete plans cannot be said to be in her best interest, a view appeared to be shared by the resultant Social Investigation Report submitted on 13^th March 2015 and which is not in support of the Mother’s application.

14.    It is worth noting that under the said joint custody order of 14^th September 2012, the Father has been able to enjoy the following access to Z on a 2 weekly cycle as follows:

15.    In addition he has also been able to share Z’s major school holidays generally with the Mother who has been flexible about him enjoying additional days for special occasions. Perhaps as a result the Father issued a summons on 6^th January 2015 for shared care and control of Z and for additional access to her while pending the determination of his summons, but which was subsequently adjourned at his request without determination.

16.    After the inevitable flurry of further affidavits exchanged by the parties and an unsuccessful CDR hearing on 27^th March 2015, the Mother’s application proceeded to trial for 4 days in late May 2015 during which the parties were represented as before by Ms Francis Irving for the Mother and Mr Russell Coleman SC for the Father.

17.    At the commencement of the trial, the Mother made her open proposal with various arrangements and details of the Father’s access to Z upon her relocation to London and which can be summarised as follows [2A/863 – 868]:

(a) Joint custody remains between the parties;

(b) Sole care and control remains with the Mother;

(c) The Father shall have regular access to Z by Skype and telephone;

(d) The Father shall have access to Z during her school term for 10 consecutive days each month including visiting and staying access upon 7 days’ notice to the Mother save for the months in which he has his share of Z’s school holidays;

(e) The Father shall continue to share with the Mother of Z’s half-term school holidays, Christmas and Easter in alternate year and half of her summer holiday;

(f) The Mother shall use her best endeavours to reach agreement with the Father on the choice of school for Z, to discuss and communicate with him and to cooperate with him for the best interests of Z and on all matters concerning her education and medical issues save in an emergency with a view to reaching consensus on any differences in relation to her overall welfare, and not to make any unilateral decisions on such matters;

(g) The Mother undertakes to the court to have this order registered in the Court in London so that there is a mirror order in England within 6 months of Z’s removal to London and to return her to Hong Kong when called upon to do so.

18.   The Father did not make any open proposal but his case for Z is clear from his various affidavits, which consists essentially of the following points:

(a) Z has lived in Hong Kong since birth, that she is settled in school here with many friends, and is doing well in that school environment;

(b) Both parties are capable parents of Z and have been actively supporting her in her schooling and school activities;

(c) He is a very hands-on father and has always been actively involved in every aspect of Z’s life since her birth;

(d) Z has a close and loving relationship not just with him but also with the extended paternal family living in close proximity to him in Hong Kong;

(e) The Mother’s intended destination for relocation is not a place where she has spent considerable time as an adult or where she has a clear existing support network, whereas her working and adult life has been spent mostly in Asia and for the last 8 years in Hong Kong;

(f) The Mother’s plans for the relocation are not thorough or well-thought out including Z’s future education, which left a flavour of a rush to London so as to mount a financial application there;

(g) There are courses similar to the ones for which the Mother wishes to study in London available in Hong Kong and of which she should do more research and which may render it unnecessary for her to do so in London thereby saving significant travel time which would otherwise be available for care of Z in Hong Kong;

(h) The Mother has not properly explored her immigration options in Hong Kong, on which she should have taken detailed immigration law advice and action;

(i) Any relocation of Z would necessarily involve a very significant reduction of care time with the Father with immense impact on their close relationship, and that in overall terms, the Mother’s proposed relocation is simply not in the best interests of Z;

(j) The status quo in respect of Z’s custody and care arrangements should be maintained with variation of the Father’s access to reflect previous flexibility of practice and the Mother’s open proposal for sharing of care and additional access including at least 2 additional nights of staying access following his usual weekday evening access;

(k) Z should not be permanently removed from Hong Kong and should instead continue to attend Kennedy School in Hong Kong, while his shared care application be adjourned sine die with liberty to restore.

19.   Before I am to consider the evidence of the parties’ respective case, it would be relevant for me to first set out the law and principles applicable to such relocation application.

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 the child’s relationships with the maternal family and homeland?

     (3) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?

     (4) The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist in so far as appropriate. (per Thorpe LJ at paragraph 40)

 4) In short, the relevant factors are :

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

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

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

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

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

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

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

21.  It is under these principles and guidance that I shall now approach the Mother’s application, starting first to consider whether it is genuine in the sense that it is not motivated by some selfish desire to exclude the Father from Z’s life.

Is the Application Genuine?

22.  The Mother’s main supportive affidavit, her 38-pages 12^th Affidavit [1A/4] which, as pointed out by Mr Coleman for the Father, contains large amount of historical background information and materials in particularly details of her failed relationship with the Father which have all been rehearsed before and which I, again, found to be irrelevant, unhelpful and serve no purpose other than to increase tensions and antagonism with the Father, for which she had been criticised before in my earlier judgment when she started off these proceedings with an even more voluminous affidavit with hundreds of pages of irrelevant exhibits, but which criticism apparently neither she nor those advising her have taken any heed.

23.  Her reasons are stated in §43 – 55 of that 12^th Affidavit [1A/21 – 27], the gist of which can be summarised as follows:

(a) She being the primary carer of Z, and for that matter N as well, wishes to return home in London with both of her daughters so that she can finally settle down and put down roots, as they are British while Hong Kong is not her home, and with her parents, brother and grandmother all live close to London, she will have good family support while her daughters can spend more time with them;

(b) She and N do not have any residential status or visa in Hong Kong, nor does she have any prospect of decent employment here as she has no skills or experience other than modelling, that she has been struggling to make ends meet for her family on the maintenance order that was awarded on 22^nd January 2013 most of which is to cover her rental expenses and which will cease when Z is 18 or completes full-time education and the Father no longer has to pay any maintenance or her carer’s allowance, when she will be aged 50 without any form of income or ability to find work, or any financial resources or pension to support herself;

(c) Hence she now needs to retrain and enter employment in London which will provide her with a career and a decent income going forward, and while Z is being financially supported by the Father, she needs to support N as her father is not reliable;

(d) She has been greatly interested in the subjects of nutrition and endocrinology for years, and has decided to work in this field in which case she will need to study for a degree and obtain the relevant qualification in London as she cannot do so in Hong Kong without a student visa for the Higher National Diploma first before entering university, something which she cannot afford both in terms of time and costs, and that in any event there is no equivalent or suitable degree course here;

(e) She has since been accepted by the University of Westminster in London for a 4-years BSc degree in biochemistry and nutritional science which is to commence in September 2015, and for which she intends to apply for student loans to cover the school fees and expenses;

(f) She therefore believes it to be in Z’s best interests to move with her to England where she will be in a position to retrain and find gainful employment, which will not only provide her with financial stability but also enable her to better take care of not just Z but also her sister N, as they need a strong role model and she feels she can be a better one for them with a career and financial security.

24.  The Mother went on to make the following proposals in her said affidavit and in her evidence as to future arrangements for accommodation and schooling for Z in London:

(a) For accommodation she would like the Father to agree to purchase a property on trust for Z in London, but she proposes to wait 12 months so that she and the children settle in London first, and meanwhile she will rent a serviced-apartment on short-term while looking for a suitable 4-bedrooms property of similar size of the Bel-Air Apartment in close proximity to the children’s school and her university from the Schedule of Accommodation Options exhibited to her said affidavit [1A/62] including St John’s Wood, Maida Vale and Marylebone and at a monthly rental ranging from about £4,300 to £5,800 which she proposes to pay from the current maintenance order;

(b) For schooling she proposes that both girls should attend the same school from one of those listed in the Schedule of School Option [1A/63] all of which have excellent reputation, with her first choice on King Solomon Academy which is a government state school;

(c) She also proposes to take her domestic helper with her to London and when the helper’s current contract expires by the end of the year, if she is willing to stay she will renew her contract so that she can continue to assist her in taking care of the girls when she attends classes.

25.  Ms Irving therefore submits that the Mother’s application is clearly genuine as she has no future for herself in Hong Kong where she and N are just a tourist and hence their position here is precarious, it is only right that she wants to go home in London where she has a loving and supportive family and the opportunity to acquire an education and some independence, and with her generous term time access offered in her open proposal to the Father, there is simply no indication at any time that the Mother has sought to exclude Z from him or that she has done anything to damage their relationship.

26.  I accept that it is never the Father’s case that the Mother’s application is motivated by any desire to exclude him from Z’s life, but he suspects that it may be for some reasons other than those stated by her, as he points out that originally the application was predicated clearly on the Mother’s desire to move to study in London, but from around the time of the failed CDR hearing, whilst study remains one point, the emphasis has since shifted to include the suggestion that she must leave Hong Kong for immigrated status reasons of herself and N, and he submits that that shift in stance must be seen against the history of the litigation, as it reveals a wholly inconsistent stance taken by the Mother, which casts grave doubt on the overall basis for her move.

27.  Firstly, Mr Coleman submits for the Father, that the Financial Order made on the Mother’s earlier application for appropriate financial support from the Father was calculated by reference to the costs of her living with both N and Z in Hong Kong, and when she appealed the said Financial Order to the Court of Appeal, the main thrust of the appeal was also as regard her claim that the Father should purchase or settle a property for Z in Hong Kong.

28.  Mr Coleman submits that when the Mother failed to persuade the Court of Appeal on that claim and then launched her application for leave to appeal to the Court of Final Appeal in February 2015, which he notes was well after the commencement of her relocation application, when the whole purpose of that intended final appeal was still to obtain a property for use for the long term in Hong Kong during Z’s minority, he submits that it is simply irreconcilable with her argument now that she must leave Hong Kong.

29.  It is therefore clear, Mr Coleman submits, that including from the procedure timing at least a main aim of the Mother has always been to secure a purchased or settled property to live in, and if that cannot be achieved in Hong Kong, then she tries for London, which was writ large in her oral evidence at this trial as well as at the hearings before the appellate courts when her Counsel was at pain to point out that the norm in the English Courts would be for an ordered settlement or purchase of a property, and hence the Father suspects that this claim is actually behind the Mother’s motive for bringing the present relocation application as he believes that she will no doubt pursue it in London now that she could not get it in Hong Kong.

30.  Mr Coleman submits therefore in light of the prominence that the immigration issues attracted in the Mother’s argument at such a late stage in this litigation, as well as her emphasis on the need for a property to be purchased, the court should share the Father’s concerns that:

(1) the whole point of the financial litigation as pursued by the Mother must have been on the basis of the Mother and Z could and would remain in Hong Kong for the long term, and the appeals must also have been pursued on that basis;

(2) million of dollars on legal costs have been spent and, if relocation is permitted, largely wasted on financial matters predicated on a long-term future for Z in Hong Kong, when it is now the Mother’s position that she must leave, and that she must do so on a basis that it has always existed since long before she even began these proceedings in 2011;

(3) a fundamental driver of the Mother’s stance in the litigation in Hong Kong, not least on the appeals, was her strong desire for the purchase of property rather than rented ‘temporary’ accommodation, hence that litigation is now simply going to move to London, and in effect risks starting all over again, which cannot be in the interests of the parties to continue to haemorrhage money in this way, nor can it be in the best interests of Z for this to happen.

31.  I propose to first deal with the criticism of the Mother shifting her case to include her immigration status in Hong Kong at the late stage of the litigation: That she is in Hong Kong on a tourist visa, and for that matter so is N, is a fact never challenged by the Father, and whether or not she is guilty of only raising it at such late stage does not in any way alter that fact.

32.  This criticism is in fact not fair, as not only did the Mother raise her concern over her immigration status in Hong Kong in her very first affidavit filed in these proceedings on 11^th August 2011, she did also express her concern there about her lack of job opportunity/career in Hong Kong and possible relocation in the same affidavit at §76 [early trial bundle 1/90, 136 – 137] when she said:

 “I ended my modelling career as a result of the promises made by the Respondent (the Father) to look after me and N and Z ... The Respondent has now ceased to provide adequate resources for me and my daughters. I cannot afford the living costs for my daughters in Hong Kong without substantial financial resources. I currently stay in Hong Kong on a visitor’s visa. The Immigration Department has refused my request to be a resident. There is now produced and shown to me marked “IDC-18”, a copy of letter from the Immigration Department dated 18 May 2010. If the Respondent is not going to provide adequately for me and my daughters, then relocation from Hong Kong may be the only sensible solution.”

33.  Whatever the uncertainty over her future in Hong Kong, there is no denying of the Mother’s desire for the Father to purchase a property for Z during her minority in these proceedings, and by her single-minded pursuit of such an order in both the first instant trial and her subsequent appeals in Hong Kong, the Father feels entitled to challenge her stated reasons by raising these questions: If she was indeed genuinely desirous of obtaining a degree and a career in London, why pursued such an order in Hong Kong all the way to the Court of Final Appeal, and that if she had been successful in obtaining an order for the Father to purchase a property for Z in Hong Kong, would she then still be as concerned about her immigration status or lack of employment here, and would she still want to pursue her degree in London?

34.  While these questions seem valid and legitimate at first glance, ultimately in my view they do not matter as the Mother’s desire to get the best possible financial security for Z should not render her application any less genuine or reasonable.

35.  Firstly, there can be no dispute of the Mother’s very limited earning capacity as a fashion model, and notwithstanding the Father’s allegations of various odd jobs in the past, it is a career with a fairly short life-span and according to the Mother in her circumstances and at her present age realistically it is finished.

36.  Again there can be no dispute and as I have found in my earlier judgment, the Mother was throughout their cohabitation wholly dependent on the Father, and to large extent so was N, to both of whom he had been very generous providing them, and of course Z as well, with a very high standard of living with a secured and comfortable lifestyle. In fact as far as the Mother is concerned they had actually gone through certain ceremony in Bali in about 2007.

37.  It is against this background and in this context that the court should be looking at the Mother’s reasons not only of her present relocation application but also her earlier financial application for Z and subsequent appeals, and while the extent of the costs of which as pointed out by the Father was subject of criticism on appeal, rightly so if I may respectfully agree, it is however in my view unfair for the Father to criticise her for so pursuing the appeals, as after all she was proved to be correct on the issue of jurisdiction, and failed only on the court’s exercise of discretion which could have been easily gone in her favour. The point is, why was she not entitled to go for the best possible financial security for Z, in particularly when she all along rightly believed that the court does have jurisdiction to order the Father to purchase a suitable property for Z?

38.  When she has exhausted all legal means to get the kind of financial security that she wants in our courts, and has to face a wholly uncertain future with no job or earning capacity and with no residential status in Hong Kong, why is she not entitled to look to her home country where her parents and family live for a better and more secured future, and why should the decision on which course to study or which school to enrol be dictated to her by anybody other than herself? And rightly or wrongly, if sometimes in the future she finds it necessary to bring proceedings again in London for that financial security against the Father, then so be it.  

39.  In the premises I have no reason to doubt that the Mother’s application is genuine in that it was motivated to exclude the father from Z’s life, and so I turn to consider the next question as to whether it is realistic.

Is the Application Realistic?

40.  In other words, is it founded on practical proposals both well investigated and researched? The Father thinks not, not just in terms of housing or schooling for Z, but also as to the Mother’s own education.

41.  Starting with housing, it is the Father’s argument that it is simply not enough for the Mother to have spent just one day in London in 2014, as conceded in her oral evidence, looking for various accommodation options, as it is no answer for her to say that she knows the area well as London has changed very much since she lived there more than 10 years ago, and that she should have done a lot more such as actually visiting schools, walking around the areas for hours or days at various times, going to find specific buildings or part of streets in which to look for specific choice of property, etc, things that the court would ordinarily expect on such an application.

42.  This was however not done, Mr Coleman submits for the Father, as the Mother’s affidavits contain no maps or photos, just the barest details of a range of accommodation from the internet with no thorough investigation, with no explanation of why specific accommodation will likely be available within the catchment area for any particular school if she looks for it say over the summer, and notwithstanding the comments from the Father that her plans were not well developed and lacked details, the Mother did not return to London for further research, but instead she chose to spend time holidaying in Europe which is why, he submits, the Social Work Officer had expressed the same view that the plan was not well-developed.

43.  The same can be said about the Mother’s plan for schooling for Z, Mr Coleman argues, which is again devoid of details or information apart from the said Schedule, that she has not even arranged to see any school or met any teacher, and that no place has yet been for Z of any school even at this late stage other than the hope of getting Z into the school she wants, which depends on being in the right catchment area and finding a suitable residential property at that time in that area, which he submit as wholly unsatisfactory, especially when she has always been aware that the Father wishes Z to go to private school instead, but she has never looked into that option at all in her research.

44.  In reply Ms Irving for the Mother argues that it is wholly unrealistic to expect her to have secured a property any earlier as she simply has no funds to pay for two rents, but having already indentified the area in which she would like to live by reference to the state schools available and which is also close to the homes of the Father’s family members in London as well as the state schools she favoured after having done research into the Ofsted results of the schools in that area, and that she will bring her domestic helper along, which is all she could reasonably do in her circumstances and for which she should not be criticised, especially by the Father of all people when he was not assisting at all at least as far as choosing the right school for Z until at the trial when he agreed to consider accompanying the Mother to London for that purpose.

45.  I agree with Ms Irving that given what the Mother has already done with her research and in view of her financial limitation, and while she may have lived away from London over the past 10 years or so, it is not as if she was a total stranger looking to live there for the first time, and with the support of her brother and parents, I do not find her plan premature or unrealistic at all.

46.  The Father also questions the Mother’s plan for her own education in London where the core is that she cannot do the course she wants in Hong Kong, and that she cannot get a visa to study here, but he submits that neither point is well made out on her own evidence, as her 14^th Affidavit shows that she has only actually applied for one part-time course [2A/565] and never any full-time course in any discipline at any of the universities in Hong Kong, and that if she is offered such a full-time course, it is submitted that a student visa will likely be granted or at least gives rise to eligibility for a student visa.

47.  I have already made the point that it is not for any of us to dictate to the Mother what to do with her studies other than to assess whether her plan is realistic, but given the fact that she has already been accepted by the university, that point now seems moot to me. Of course she will have to find ways to cover its expenses for the next 4 – 5 years, for which she has indicated that she will apply for government loans and with the current maintenance order including her carer’s allowance, I am unable to say that her study plan is unrealistic either.

The Father’s Opposition & Impact

48.  I must first stress here that I do not for one minute doubt the Father’s love and concern for Z, and I do not believe that his opposition to the Mother’s application is in anyway driven by any ulterior motive other than his genuine concern for her future welfare or interests, and any suggestion that his opposition is for his financial gain in not having to purchase a property is, I agree, impossible to reconcile with his intention to buy, albeit at a reasonable time of his choosing, or for that matter the likelihood of the Mother to renew this claim of hers in this court in the event her relocation application is refused.

49.  Given his close relationship with Z and his current substantive access to her, there is no question in my mind of the impact on the Father should Z be relocated to London, both on his relationship with his daughter and also on his work as it is simply unrealistic if not impossible for him to take the long trip to London and back regularly or on a monthly basis just for that purpose, hence his physical contact with Z will certainly be reduced compared with the weekly access which he has been able to enjoy currently in Hong Kong, and hence the emotional impact on him for missing his daughter at least during the early stage should not be disputed, but the Mother believes that a daily or regular contact by Skype, telephone or other electronic means as well as the generous access arrangements including major school holidays will certainly enable the father-daughter relationship to be maintained, and that whatever emotional impact on the Father will only be temporary and no doubt ease off over time. I agree and believe that the Father, given his qualities of optimism, intelligence and fortitude, all of which I observed during the course of the proceedings, will no doubt be able to handle his emotional loss and keep going, particularly as he has such strong commitments to his daughter and with such generous contact arrangement in place.

Impact on Mother

50.  On the other hand, I agree with Ms Irving that it will be emotionally devastating to the Mother if her application is refused and that she has to remain in Hong Kong in her present circumstances, as not only would she be highly stressed and unhappy with constant concerns over her immigration status, and more significantly her uncertain financial future not only for herself but also for N, as well as the emotional loss of not being able to put down root here, all of which I believe will have a much bigger adverse impact on her given her less or weaker emotionally composed personality, and which I fear will just manifest in her continued resentment towards the Father, and that undoubtedly cannot be in the best interests of Z in the long term.

Social Investigation Report

51.  As noted above the report by Ms Lam dated 13^th March 2015 [2A/627] submitted for the purpose of the Mother’s relocation application seems not supportive as she stated in §28 [2A:635]:

 “(The Mother)’s wish for removal to England to start anew is understandable. She wants to strive for an independent living and nutures the two daughters under a peaceful mind. Taking into consideration that there is no fixed accommodation, the two parties’ different views towards arrangement of public or private school issue, (the Mother)’s time management after attending a full-time degree course and the father’s worry to maintain the close father-daughter relationship, the feasibility of the removal child plan seems not yet well prepared for Z, which carries long term implication on her upbringing and her relationship with both parents. Most importantly, Z has explicitly showed her preference to live with (the Mother) and meet the father regularly while close bonding was observed between Z and (the Father) and his paternal relatives. Maintaining the bonding with the significant others is definitely beneficial for Z’s healthy development. It is inevitably affected if removal is granted to (the Mother).”

52.  The views of Z on her parents and the relocation issue were set out in §18 of Ms Lam’s report where the relevant part can be found as follows:

 “6-year old Z was individually interviewed twice. The first interview was conducted at (the Mother)’s home on 17.2.2015 … For the parent-child relationship, Z gave 9 marks out of 10 to the mother while father got 7. The second interview was held at the playroom of the Social Investigating Officer’s office on 24.2.2015 right after the father-daughter observation. Through drawing, A, in ranking her closeness with her family members, N came first, then the mother, followed by the third paternal grandmother and then the father. Z understood that the mother might remove to England for living. She verbalized her wish of staying in Hong Kong and live with the mother and N. She also wanted to meet the father to play various toys with him and the two cousins.”

53.  Ms Irving for the Mother submits that Ms Lam’s reasons for not supporting the relocation application are one-sided, flawed and illogical in that she stated matters of her concerns over accommodation and schooling for Z in London in her report without discussing them with the Mother, that her stance that no change should take place as the present situation worked for Z, and that she placed too much weight on Z’s wishes at her present age.

54.  I agree with Ms Irving and found that Ms Lam also failed to address at all the impact on the Mother if her application is refused, as she conceded at the hearing, or how such impact may affect Z in her growth and development while under the Mother’s care. Similarly Ms Lam should not have placed so much weight on the view of a child of that age, and that it is only normal for children, and in fact for grownups too, to be afraid or resist changes to the environment to which they have grown accustomed to, but that by itself should not be a valid reason to change, as otherwise all relocation applications would fail, especially when the change is as I have found for the long term good of all concerned in particularly the primary carer.

Z’s Best Interests

55.  There is no doubt in my mind that it is in Z’s best interests to grow and flourish under the primary care of her mother in a happy and settled environment and with her elder sister N and of course with regular and generous contact with her father, and for all these to happen it is essential for her mother as her primary carer to feel content and confident and with a sense of financial security and stability not just knowing that they will be provided by the father but also from her own ability and earning capacity, and as she has submitted, to be a good and successful role model for Z in addition to the one which she already has from her father.

56.  Conversely it cannot be said to be in her best interests when her mother is constantly under emotional stress and financial insecurity with no job or career of her own, and according to the Mother no future in Hong Kong, all of which as I have noted would no doubt manifest over the long term and adversely impact on her daily care of Z, and on N as well, and would certainly far outweigh whatever benefits that Z may have from living in the same city with her father and from seeing him every week.

Conclusion

57.  In conclusion I am satisfied that the Mother has validly and convincingly made out her application that it would be in Z’s best interests to be relocated permanently out of Hong Kong to London with her mother and her sister, and so I grant her leave to do so, and accept her various undertakings as set out in her open proposal and make an order in terms of her proposed access for the Father accordingly.

58.  I also agree that the current Financial Order should continue for the time being and to be reviewed as suggested by the Mother in about 12 months, and that the Mother should provide the Father with copies of the relevant receipts and invoices of Z’s regular expenses, not on monthly basis as suggested by him, but rather quarterly instead. As the Mother is successful with her application, I agree that she should be entitled to her costs with certificate for counsel to be taxed if not agreed, which is a costs order nisi to be made absolute at the expiration of 14 days.

59.  I must however not end this judgment without saying this: The litigation between these 2 parents have gone on far too long, more than 4 years through 3 different courts and millions of dollars in legal costs over issues which are far from difficult or complicated legally but rather literally as common and mundane as bread and butter, and yet this decision of mine sadly is unlikely to bring any closure as it seems that further proceedings are looming albeit elsewhere in London, which have brought out some important and far-reaching legal issues which in my view desperately require to be addressed by legislation and serious soul-searching by our society.

60.  The Father no doubt would simply put the blame of what the Court of Appeal has described as a sorry state of affair on the Mother’s greed and inability to grasp the reality of her rights for financial relief within the boundary of the Guardianship of Minors Ordinance. I however like to think that she has merely been seeking justice from the court to redress something which she believes that both she and her daughter have been unjustly deprived of by our current law.

61.  In my earlier judgment I opined that the court’s powers under GMO to make financial provision for children born out of wedlock are much more limited than those available under the English Children Act which appeared to me unfairly and discriminatively restricted. While the Court of Appeal has in its subsequent appeal helpfully redressed that situation to some extent by clarifying the legislative intentions and adopting a wider interpretation to various provisions under section 10(2) of GMO to bring the court’s powers closer to those in the English statutes, but still there are significant gaps in our laws between legitimate and illegitimate children as far as their rights to seek financial provision are concerned.

62.  The most glaring examples can be found from the provisions under Matrimonial Proceedings and Property Ordinance, Cap 192 where the court’s powers to make any sort of financial provisions and at any time for a child of a marriage under sections 5, 6 and 6A are virtually without any restriction or limitation, while section 7 obliges the court not only to have regard to all those matters set out under subsection (2) in respect of the child of the marriage, notably in particularly the standard of living enjoyed by the family before the breakdown of the marriage ((2)(d)) and the manner in which the child was being and in which his parents expected him to be educated ((2)(e)), but also to exercise those powers as to place that child so far as it is practicable and just to do so in the financial position in which the child would have been if the marriage had not broken down. There are simply no similar provisions for an illegitimate child under GMO, and at best the relevant standard of living that such a child would be entitled is ‘to be brought up in circumstances which bear some sort of relationship with the father’s current resources and the father’s present standard of living …’ – per Hale J in J v C (Child: Financial Provision) [1999] 1 FLR 152.

63.  All of these, I assume, were designed to guard against claims made on such a child’s behalf but with disguised element of providing for the mother’s benefit instead, for which she as a cohabitant only instead of as a wife has no right under our current law for financial relief generally for herself per se upon separation from the father notwithstanding that she may have been wholly or substantially dependent on him throughout their cohabitation no matter how lengthy it may have been, save for some relatively minor ones such as carer’s allowance but only when the facts of the case justify. As a result the mothers in many cases, as no doubt the one before me, would simply feel discriminatively aggrieved by the apparent injustice or unfairness so caused.

64.  This is particularly so, in my opinion, when there is a clear different or unfair level playing field between these cohabitants where one, usually the mother as in the case before me, has no or very little or limited earnings or financial resources and is obviously economically vulnerable or disadvantaged, and where the other, usually the father who may hold all the financial powers and resources throughout their cohabitation, and on their separation with the former very often left without the means to rebuild her life, let alone to obtain a fair share or division of the assets which she was allowed to use and enjoy prior to the breakdown of the relationship. To those ended up in such a predicament, there is clearly a strong sense of injustice and inadequacies in our current law.

65.  Such inadequacies in my view all the more cry out for the need to be addressed when one considers the fact that under Inheritance (Provision for Family and Dependants) Ordinance, Cap 481 a person who before the death of a deceased was being maintained either wholly or substantially by the deceased can apply for financial provision from his estate: section 3(1)(ix), which includes a dependent cohabitant. If it was accepted by legislation that such a cohabitant should accordingly be granted legal remedies on the death of the other cohabitant, I ask why should she/he not be so entitled when the other cohabitant is still alive? I am unable to think of any logical answer.  

66.  While it is recognised that any suggestion to grant legal remedies to cohabitants will no doubt be controversial and unwelcome to many for various reasons, but given the facts that cohabitation outside marriage in our society has become increasingly common over recent decades with increasing public acceptance, that the many problems and difficulties which have very often caused to some of these cohabitants and their children upon the breakdown of cohabitation, and the perceived inherent injustice that many feel being associated against them, it is time that some workable scheme or system should be put in place through legislation to help individual cohabitants and their children for financial provision and adjustment of property right between cohabiting couples on separation, which would have, I honestly believe, assisted the parties in this case to resolve their disputes much sooner, much more economically, and above all, with much less acrimonies between them.

67.  Lastly, it remains of course my gratitude to counsel for both parties for their most valuable assistance rendered to the court throughout the trial.