CAW v. FHFD

FCMC 11197/ 2009

[2018] HKFC 239

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11197 OF 2009

----------------------------

----------------------------

-----------------------

J U D G M E N T
(Relocation, variation of
custody, care and control and access)

-----------------------

Index	Page
Introduction	3
Background	3
The respondent’s (the father’s) opposition and proposal	7
Legal principles	8
The issues	15
The jurisdiction point – issue (a) section 21(2) of CACO	17
The jurisdiction point - issue (b) rule 94(1) of MCR or section 21(3)(a) of CACO	31
The jurisdiction point - issue (c) Practice Directions 15.12	35
The approach to determine relocation	37
The social investigation officer, Ms So	38
The international social investigation report	43
The petitioner's (the mother's) evidence	44
The mother's husband's (KK's) evidence	53
The respondent’s (the father’s) evidence	56
The father's wife (Ms Ko's) evidence	63
Should the recommendation in the social investigation report be adopted?	65
The reolcation point - (a) is the mother’s application genuine?	70
The relocation point - (b) is the mother's application practical?	72
The relocation point - (c) is the father’s opposition genuine?	77
The relocation point - (d) detriment father if relocation granted?	78
The relocation point - (e) impact of the mother if relocation refused?	79
The relocaiton point - (f) child J to enroll in SIS?	82
The relocation point - (g) Chinese language skill of child J?	85
The relocation point - (h) child J's relationship with father if relocation granted	86
The relocation point - (i) child J's view	87
The relocation point - (j) the welfare checklist	88
Conclusion	89

Introduction

1.  The petitioner (“the mother”) applied by way of summons filed on 9 December 2016 for leave to remove of the child of the family (“the child J”) to Szczecin, Polandpermanently and to attend the Szczecin International School (“SIS”).

2.  The respondent (“the father”) applied by way of summons filed on 4 January 2017 for an order to vary care and control of the child J be granted to him.

3.  As at the completion of trial on 2 May 2018, child J obtained offers from both SIS and an international school in Hong Kong (“the HK school”) for his secondary studies and he has been attending the HK school pending handing down of this judgment.

Background

4.  The mother was born in Hong Kong.  She was aged 44 at time of trial. Shortly after she was born, her parents emigrated to Vienna.  Her family stayed there for 6 years and thereafter they lived in Kent of England for another 4 years.   Having spent her first 10 years in Europe, her family moved to Toronto, Canada where the mother grew up until she completed her university education.  The mother met the father in Toronto in 1998.  They started a long-distance relationship for one year before the mother moved and started living in Hong Kong in 1999.  The mother has been living in Hong Kong for 18 years as the date of trial.

5.  The mother is the founder of her own education business which provides one-to-one tutoring of English, French and Latin to students of all ages. She also speaks German.

6.  The father was born and raised in Hong Kong. He was aged 46 at time of trial.  He came from a traditional Chinese family and he is the eldest son of his parents.  He has a younger brother who also lives in Hong Kong.  His father passed away in 2007 while his mother is now aged 73 with good health.  He received primary and secondary education in Hong Kong and he went to Canada to further his studies upon completion of Form 5 in 1988.  He returned to Hong Kong in 1997 and started working in the media and entertainment-related industry as a media consultant.  In the past 6 years, the father had to travel frequently.  Since 2017, the father accepted an offer as managing director of a media company in Hong Kong and will mainly stay in Hong Kong.

7.  The mother and father were married in Hong Kong on 15 March 2003 and separated in late 2007.   The mother filed a petition for divorce on 4 September 2009.  The Decree Absolute was granted on 6 December 2010.

8.  The child J was born in December 2006, aged 11 at time of trial. At time of the consent order, the child J was only 3 years 8 months old studying in kindergarten.  The child J left his kindergarten shortly after he started K3 and began attending an international school in Hong Kong in his primary years. He attended year 6 in that international school, i.e. the last year of the primary school division. Since September 2018, child J has been attending grade 7 of the HK school. The child J holds both a Canadian passport and a Hong Kong SAR passport.

9.  The Court granted the order for custody, care and control of the child J by consent of the mother and father on 13 August 2010 (“the consent order”). The mother and father agreed that they should have joint custody of the child J with care and control to the mother.  They also expressly agreed that they would discuss major issues including medical, educational, legal and religious issues in the child J’s best interests that shall be to maintain an ongoing relationship with both of them. They also acknowledged that Chinese should play an important role in the child J’s life, for example, child J’s primary school should provide a satisfactory level of Chinese language education, and that it would be stimulating to child J by exposing him to both English and Cantonese. If no agreement can be reached on issues, the mother shall make the final decision.

10.  The defined access of the father was agreed and ordered as follows:

(i)   every Tuesday evening from 6:15 pm to 8:45 pm;

(ii)   Friday 6:45 pm to Saturday 8:45 pm on 1^st, and 3^rd weekend of the month; 

(iii)   Saturdays 9:30 am to 8:45 pm on 2^nd and 4^th weekend of the month; and

(iv)   telephone access on Monday and Friday.

11.  Although the father says in his affirmations that he did not have access on the 5^th weekend and certainly the consent order did not provide for this, but in practice he has access on the 5^th weekend, if there was one, from Saturdays 9:30am to 8.45pm.

12.  As child J grew older and had to get to bed earlier for school the following day, Tuesday access was moved earlier.  The access schedule was varied after discussion between the parties. Hence, the present access arrangement is:

(i)   every Tuesday evening from 5:15 pm to 8:30 pm;

(ii)   Friday 4:50 pm to Saturday 9:00 pm on 1^stand 3^rd weekend of the month; 

(iii)   Saturday 9:30 am to Sunday 8:30 am on 2^nd weekend of the month;

(iv)   Saturdays 9:30 am to 8.45 pm on 4^th and 5^th weekend of the month.

13.  Additionally, the mother has agreed to the father having daily telephone access even on days when he has physical access. 

14.  The father remarried to Ms Ko (“Ms Ko”) in August 2012 and their son, half-brother of child J (“brother J”) was born in 2015.  The family now resides at a premise in Hong Kong, in the vicinity of the mother’s home. 

15.  The mother met her husband (“KK”), a dentist and implantologist from Szczecin, Poland in April 2014, they started seeing each other and continuing their courtship by travelling between Hong Kong and Szczecin since then. The mother remarried to KK in December 2016. The relocation summons was issued after their remarriage.

16.  Szczecin is only the 7^th largest city in Poland.  The official language is Polish.  The mother says she would like to enrol child J to SIS which offers International Primary Curriculum (“IPC”) in the primary school division, International General Certificate of Secondary Education (“IGCSE”) in middle school and International Baccalaureate (“IB”) thereafter. She intended to enrol child J to grade 7 in September 2017, upon the child’s completion of Year 5 in Hong Kong. Coupled with the the mother’s remarriage to KK and also her financial pressure, that she wishes to bring  child J to Szczecin. She believes Poland can offer a much better environment for child J to grow up and the costs of living in Poland is much lower than in Hong Kong.

The father’s opposition and proposal

17.  The father opposes the mother’s application.  He proposes that child J should stay in Hong Kong for at least 2 years[1].  He shall complete his primary school and then to attend an international secondary school.  The status quo of child J can be maintained where the mother can continue to have the care and control of child J. The father would be agreeable to sending  child J to study or attend a boarding school in the UK or Canada thereafter.  By then, the mother will be able to permanently relocate to Poland with KK.  The father is asking the mother to allow child J to stay in Hong Kong for two more years for receiving good education, to have  better Chinese language skill, a more developed sibling relationship with brother J and more importantly, a solid father-son relationship with the father that is ready and could survive long distance in the foreseeable future.  

Legal Principles

Generally

18.  Guardianship of Minors Ordinance Cap 13 (“GMO”) s.3 (1):

1)  In relation to the custody of upbringing of a minor … the court:

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

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

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

(ii) shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father;

19.  The “Welfare Checklist” routinely used is from the Law Reform Commission of Hong Kong Report on Custody and Access of 7 March 2005 and now contained in the Proposed Legislation: ChildrenProceedings (Parental Responsibility) Bill of 25 November 2015.  Many of the factors are relevant when looking at the decision facing the Court in this case:

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

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

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

(d)  the likely effect on the child of any changes in the child's circumstances;

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

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

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

(h)  any family violence involving the child or a member of the child's family;

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

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

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

(l)  any other fact or circumstance that the court thinks is relevant."

20.  While the Welfare Checklist is not yet part of Hong Kong’s legislation, it is a checklist to ensure that matters relevant to the child’s welfare are addressed, and the court may “cherry pick” those factors which are relevant to the case before him or her (see H v N (Children: variation of interim order) [2012] 5 HKLRD 498).

On relocation

English authorities

21.  The modern line of English authority on removal starts with Poel v Poel [1970] 1 WLR 1469, wherein it was set out that while the welfare of the child is the Court’s primary consideration, regard must be given to the welfare of the parent who has care of the child, since refusal of the application, and the ensuing unhappiness, will affect the welfare of the child, per Sachs LJ page 1473:

"When a marriage breaks up, then a situation normally arises when the child of that marriage, instead of being in the joint custody of both parents, must of necessity become one who is in the custody of a single parent. Once that position has arisen and the custody is working well, this court should not lightly interfere with such reasonable way of life as is selected by that parent to whom custody has been rightly given. Any such interference may, as Winn LJ has pointed out, produce considerable strains which would be unfair not only to the parent whose way of life is interfered with but also to any new marriage of that parent. In that way it might well in due course reflect on the welfare of the child. The way in which the parent who properly has custody of a child may choose in a reasonable manner to order his or her way of life is one of those things which the parent who has not been given custody may well have to bear, even though one has every sympathy with the latter on some of the results."

Hong Kong authorities

22.  In Hong Kong, the Court of Appeal decision in SMM v TMM [2010] HKFLR 308 adopted the principles in the English authority Payne v Payne[2001] Fam 473 at §21 in the following terms:

“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 propositions 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:

(i) 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.

(ii) however, the application passes these tests then there must be a careful appraisal of the father’s opposition: is itmotivated 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 maternal family and homeland?

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

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)

5. In short, the relevant factors are:

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

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

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

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

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

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

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

23.  On the law of joint custody, it is worth repeating the famous §31 and §43 of PD v KWW [2010] 4 HKLRD 191:

“[31] The decisions to be made by a custodial parent are those of real consequence in safeguarding and promoting the child’s health, development and general welfare. They include decisions as to whether or not the child should undergo a medical operation, what religion the child should adhere to, what school the child should attend, what extracurricular activities the child should pursue, be it learning a musical instrument or being coached in a sport. A parent vested with custody has responsibility of acting as the child’s legal representative.

…

[43]  Before leaving a consideration of a dual concepts of custody and care and control, it needs to be emphasised that, when a court awards care and control to one parent but rights of access to the other, as in the present case, the court is effectively awarding a form of shared care and control. This is because, when a parent exercises rights of access, especially staying access, that parent assumes care and control of the child for the time that the child is in that parent’s physical custody.  Right of access, is to be remembered, are given – in the interests of the child – to ensure continued bonding between parent and child.”

24.  In W, Y v L, KP, FCMC 4636/2015, (unreported, 5 July 2016) where the primary carer, the mother in this particular case, was permitted to relocate to Shanghai, it was reaffirmed by H.H. Judge Melloy that the Hong Kong Courts are bound by SMM v TWM, which relies on Payne.  It was said again that the fundamental principle to be applied is that the best interests of the child are the Court’s paramount concern:

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

25.  The issue of the impact on the applicant of refusal was addressed in para 56 of IDC v SSA [2015] HKFLR 404, by H.H. Judge Bruno Chan.  He found that refusing the mother’s application in this particular case and compelling her to continue to suffer emotional stress and financial insecurity:

“… 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.”

26.  The Hong Kong approach is no different from the conclusions reached by the English cases.  The Court will therefore ask the following questions:

(a)  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?

(b)  Is her application realistic and founded on practical proposals both well researched and investigated?

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

(d)  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?

(e)  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?

(f)  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.

The issues

27.  Prior to determine the issues on the mother’s application, Ms Anita Yip, SC for the father raised an issue on jurisdiction of the Family Court in removal / relocation applications, namely

(a)  whether the Court has jurisdiction to make an order for permanent removal in the absence of the consent of a custodial parent, pursuant to section 21(2) of the Child Abduction and Custody Ordinance (Cap. 512) (“CACO”);

(b)  whether the Court has jurisdiction to grant or permit a removal pursuant to rule 94(1) of the Matrimonial Causes Rules (Cap. 179A) (“MCR”) or section 21(3)(a) of the CACO; and

(c)  whether the District Court has jurisdiction to hear applications of permanent removal of a child, notwithstanding Practice Direction 15.12 provides that applications under the CACO or Wardship Proceedings shall be dealt with exclusively by the High Court.

28.   Section 21 (2) and 21(3) of the CACO read as,

"21. Court of First Instance or District Court may make order prohibiting removal of child out of Hong Kong without consent

…..

(2)  A person must not remove the child out of Hong Kong without the consent of the following persons (whether or not a parent of the child) —

(a)  if the court order is in force — the person, or each of the persons, who has the custody of or access to the child under the order or who is exercising the rights of that custody or access; or

(b)  if proceedings concerning the custody of or access to the child are pending in a court _ each party to the proceedings.

(3)  To prevent a person from breaching subsection (2), a person specified in subsection (2)(a) or (b) may apply to the court for an order prohibiting the removal of the child out of Hong Kong except—

(a)  with the leave of the court; or

(b)  on compliance with the terms specified in the order.”

29.  Rule 94(1) of the MCR read as,

" 94. Removal of child out of Hong Kong, etc.

(1)  Subject to rule 97(2)[2], an application for leave to remove a child permanently out of Hong Kong shall be made to a judge unless the application is unopposed, in which case it may be made to the registrar."

30.    Paragraph 5 of Practice Directions 15.12 is reproduced as follows:

   “5. For the avoidance of doubt, “Family Proceedings” in this Practice Direction do not include applications under the Child Abduction and Custody Ordinance (Cap. 512) or Wardship Proceedings which shall continue to be dealt with exclusively by the High Court in accordance with the current practice and rules.”

31.  The Court shall then determine the issues on relocation if the Court found the Family Court has jurisdiction to entertain a relocation application. I shall directly decide on the 3 issues raised by Ms Yip as follows.

The jurisdiction point – issue (a) Section 21(2) of CACO

32.  Ms Yip submitted section 21(2) of CACO is applicable for leave to remove a child outside the jurisdiction, the Court should only grant leave with consent of persons who has custody or access to child. There is no other primary legislation in dealing with removal or relocation.  To put Ms Yip’s argument in a succinct manner, I quote from her written supplemental opening submissions as follows, she submitted:

(i)  it is not disputed that the court has jurisdiction to hear application under rule 94(1) of the MCR;

(ii)  rule 94(1) of MCR only provides that the application for leave to remove a child permanently out of Hong Kong shall be made to a judge;

(iii)  one must also read section 21(2) of CACO, which is the primary legislation, in conjunction to found the basis of application;

(iv)  section 21(2) of CACO provides that a person must not remove the child out of Hong Kong without the consent of the persons stipulated in section 21(2)(a) or (b);

(v)  the father being a person falling within both section 21(a) and (b) opposes the present application - it follows that the mother must not remove the child out of Hong Kong because there is no consent; and

(vi)  such interpretation of the statute accords with the legislative intent and accordingly, upon the proper construction and application of rule 94(1) of MCR and section 21 of CACO, this application should be dismissed.

33.  Ms Yip further elaborated, the language of section 21(2) sets out the only two conditions under which a person may remove the child out of Hong Kong. The first condition is where consent is obtained from the person or each of the persons who has the custody of or access to the child under a court order which is in force. In this case, both the mother and father have joint custody of and access to the child under a court order which is in force, it follows that consent from each of the mother and the father is required to remove the child out of Hong Kong.The second condition is where consent is obtained from each party to the impending proceedings concerning the custody of or access to the child. In this case, both the mother and father are parties to such proceedings, it follows that consent from each of the mother and father is required to remove a child out of Hong Kong.These two are the only conditions set out in section 21(2) which entitle one to remove the child out of Hong Kong.  If none of these two conditions can be met, this Court is unable to or has no jurisdiction to grant leave for a child to be removed permanently to another jurisdiction.

34.  Both the mother and the father did not apply for an order pursuant to section 21(2) of the CACO.

35.  Ms Yip made thorough submissions on the legislative intent of the provisions. First, in a Court of Appeal case, Town Planning Board v Society for the Protection of the Harbour Ltd (2004) 7 HKCFAR 1. The principles can be summarized as,

"(1) In interpreting a statute, the function of the courts is to ascertain the intention of the legislature as expressed in the legislation. The statute must be considered as a whole. Any statutory provision must be understood in its context taken in its widest sense;

(2) A purposive approach should be adopted. In construing a statute, the courts should adopt an interpretation which is consistent with and gives effect to the legislative purpose. An interpretation which is inconsistent with and does not serve that purpose should be avoided. The purpose approach has been reflected in s 19 of the Interpretation and General Clauses Ordinance (Cap 1) which provides that: -

"An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit. "

(3) In applying a purposive approach to interpretation, the legislative purpose must be first identified."

36.  Ms Yip further cited, HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568 per Li CJ, the court ascertains the intention of the legislature as expressed in the language of the statue and adopts a purposive interpretation having regard to the context and purpose of that statue:

"11. In interpreting s statue, the court's task is to ascertain the intention of the legislature as expressed in the language of the statue. This is of course an objective exercise. The court is not engaged in an exercise of ascertaining the legislative intent on its own... [but is] seeking the meaning of the words which Parliament used.

12.  The modern approach is to adopt a purposive interpretation. The statutory language is construed, having regard to its context and purpose. Words are given their natural and ordinarily meaning unless the context or purpose points to ta different meaning. Context and purpose are considered when interpreting the words used and not only when an ambiguity may be thought to arise. In HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 at 606E, Sir Anthony Mason NPJ stated:

"The modern approach to statutory interpretation insists that context and purpose be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity may be thought to arise."

. . .And the purposive approach (including the mischief rule) has been reflected in Hong Kong in s. 19 of the Interpretation and General Clauses Ordinance (Cap. l).

13.  The context of a statutory provision should be taken in its widest sense and certainly includes the other provisions of the statue and the existing state of the law...

14.  The purpose of a statutory provision may be evident from the provision itself. Where the legislation in question implements the recommendations of a report, such as a Law Reform Commission report, the report may be referred to in order to identify the purpose of the legislation. The purpose of the statutory provision may be ascertained from the Explanatory Memorandum to the bill. Similarly, a statement made by the responsible official of the Government in relation to the bill in the Legislative Council may also be used to this end...'

37.  With regard to legislative materials, Ms Yip highlighted the Law Reform Commission Report (“the LRC Report”), on (i) International Parental Child Abduction, April 2002, Chapter 5 – 6 and (ii) Legislative Council Brief – Child Abduction Legislation (Miscellaneous Amendments) Bill 2013. The commission is of the view that the only legislative provisions which deal specifically with the removal of a child from Hong Kong are contained in subsidiary legislation. Rule 94(2) of the MCR allows an application to court to prevent removal[3] and nonetheless, rule 94(2) of the MCR has been repealed in 2014. A similar provision is contained in Order 90 rule 5(3) of the Rules of District Court, Cap 336H (“RDC”)[4].

38.  The commission then considered statutory provision in England[5], section 13(1)[6] and section 13(2)[7] of the English Children Act 1989 where such provisions makes it an automatic condition of residence (custody) order that the child should not be removed from the United Kingdom for longer than one month without written consent of any person with parental responsibility or the leave of court.  

39.  The commission expressed a preference to adopt the Children (Scotland) Act 1995 over the English Children Act 1989[8]. The relevant provision of Children (Scotland) Act 1995 is section 2(3) and 2(6) as follows:

“2(3) Without prejudice to any court order, no person shall be entitled to remove a child habitually resident in Scotland from, or to retain in any such outwith, the United Kingdom without the consent of a person described in section (6) below”

“2(6) The description of a person referred in subsection (3) above is a person (whether or not a parent of the child) who for the time being has and is exercising in relation to him a right mentioned in paragraph (a) or (c) of subsection 1 above; except that, where both the child’s parents are persons so described, the consent required for his removal or retention shall be that of them both”.

40.  The commission recommended in paragraph 16 of the LRC Report as follows:

“16. We recommend that

(a) There should be a provision in primary legislation to restrict the removal of a child from the jurisdiction without the consent of the parent who has custody, or control of the child's residence, or with whom the child has regular contact. We recommend that provisions along the lines of section 2(3) and 2(6) of the Children (Scotland) Act 1995 be adopted.

(b) This section would apply in cases proceedings have already been issued or court orders had already been made concerning the child.

(c) This section would also extend to any child of the family; and

(d) Rule 94(2) of the Matrimonial Causes Rules (Cap 179, subsidiary legilsation), which allows an application to the court to prevent removal of the child, should also be enacted to the primary legislation.)”

41.  The key difference of the two jurisdictions is that under the Scottish Children (Scotland) Act 1995, the only condition where the child can be removed out of jurisdiction is the consent of both parents. In contrast, under the English Children Act 1989, a child can be removed out of jurisdiction either by the appropriate consent or leave of Court.

42.  In the Legislative Council Brief – Child Abduction Legislation (Miscellaneous Amendments) Bill 2013, it stated the best approach to avoid abduction is to prevent the child from leaving the jurisdiction in the first place[9].

43.  Accordingly, the Law Reform Commission’s objective that there should be primary legislation which explicitly provides that parental consent is required before a child can be removed out of Hong Kong, the purpose of legislation as expressed in the language is that the condition remains as that the appropriate consent must be obtained. There is no additional condition i.e. with leave of the court which qualifies the removal of the child out of jurisdiction.

44.  In consideration of the above materials, Ms Yip submitted the legislative intent of section 21 of CACO was clearly to avoid wrongful removal by way of child abduction, and not to prevent lawful removal, i.e. with both parents’ consent, with leave of the Court. This must be correct given that section 21(3) of CACO clearly states that obtaining leave of the Court will prevent a person from breaching section 21(2), prohibiting removal. 

45.  Ms Irving, counsel for the mother, disagrees. She submitted, CACO is preventative, to prevent wrongful removal, and it is a complete red herring to raise it in these proceedings, saying that this Court does not have jurisdiction to deal with the mother’s application to remove child J out of the jurisdiction and saying then that the matter has to be transferred to the High Court. In any event, it is apparent from section 21 of CACO that either the Court of First Instance or District Court may make an order under CACO. 

46.  Ms Irving criticized Ms Yip who has repeatedly informed me that the LRC Report preferred the wording of the Scottish children legislation, which provides that the only condition under which the child can be removed out of jurisdiction is with the consent of the other parent, as if to imply that this was the only avenue under which children in Scotland can be removed from the jurisdiction. On the other hand, the English Children Act 1989 provides that parental consent is only required if the child is to be removed for more than one month. 

47.  Ms Irving elaborated, under Scottish law, consent of the other parent is always required. A parent wishing to relocate can make an application for permanent removal via a “specific issue order” under section 11(2)(e) of the Children (Scotland) Act 1995[10], which provides the procedure under which a child can be removed with leave of the Court. The same test is applied as in Hong Kong being the welfare of the child is the Court’s paramount consideration[11].

48.  Ms Irving explained the LRC Report preferred the wording of the Children (Scotland) Act 1995 because section 13(1) and (2) of the English Children Act 1989 provides that a person with a residence order may remove the child for less than one month without seeking permission of the other parent or having to give notice. The LRC Report considered this provision may be problematic in Hong Kong with the ease and frequency of travel out of the jurisdiction. Paragraphs 14 and 15 of the Executive Summary of the International Parental Child Abduction Report states:

“14. In England, section 13(1) and (2) of the English Children Act 1989 makes it an automatic condition of a residence (custody) order that the child should not be removed from the United Kingdom for longer than one month without the written consent of any person with parental responsibility or the leave of the court. The person with a residence order may remove the child for less than one month without seeking permission of the other parent or having to give notice. This provision may be problematic in Hong Kong with the ease and frequency of travel out of the jurisdiction.

15.  We proposed in the consultation paper that there should be a provision in primary legislation to restrict the removal of a child without the consent of the parent who has control of the child’s residence or with whom the child has regular contact. We expressed a preference for the adoption of provisions along the lines of section 2(3) and (6) of the Children (Scotland) Act 1995. We proposed that this new provision would apply in cases where proceedings had already been issued or court orders had already been made concerning the child. It would also extend to any child of the family. We also proposed that Rule 94(2) of the Matrimonial Causes Rules (Cap 179, subsidiary legislation), which allows an application to the court to prevent removal, should be enacted into primary legislation. There was no opposition to these proposals from the respondents to the consultation paper.”

49.  The position in Hong Kong at that time was that there was no provision in the law which provided explicitly that parental consent was required before a child could be removed out of Hong Kong and which enabled a parent not involved in a divorce or judicial separation proceeding to apply for injunction. The only avenue available to them is wardship. The LRC Report therefore proposed that there should be a provision in primary legislation to restrict the removal of a child without the consent of the parent who has control of the child’s residence or with whom the child has regular contact and expressed a preference for the adoption of provisions along the lines of section 2(3) and (6) of the Children (Scotland) Act 1995. The LRC Report further proposed that the new provision would apply in cases where proceedings had already been issued or court order had already been made concerning the child and that it would also extend to any child of the family. The LRC Report also proposed that rule 94(2) of the MCR should be enacted into primary legislation but it is of note that there was no proposal to repeal rule 94(1) of the Matrimonial Causes Rules.

50.  Besides, although the LRC Report recommended that section 2(3) and (6) of the Children (Scotland) Act 1995 should be adopted, section 2(3) of the Children (Scotland) Act 1995 states that:-

“Without prejudice to any court order, no person shall be entitled to remove a child habitually resident in Scotland from or to retain any such child out with, the United Kingdom without the consent of a person described in subsection (6) below.”

51.  Ms Irving then criticized Ms Yip is seeking to misrepresent to the me as to why the LRC Report preferred the wording of the Scottish law over the English Act and to suggest that there is no provision under Scottish law for children to be removed with leave of the Court, as indeed in there is Hong Kong. I was referred to the Child Abduction Legislation (Miscellaneous Amendments) Bill 2013 to derive the legislative intent that there is no intended additional condition allowing removal out of the jurisdiction of Hong Kong with leave of the Court, as the primary CACO legislation explicitly provides that parental consent is required before a child is removed, however, as stated in the beginning of the Bill, the Child Abduction Legislation (Miscellaneous Amendments) Bill 2013 is a Bill to amend CACO and other enactments to provide for combating child abduction and for better implementing the Convention on the Civil Aspects of International Child Abduction.

52.  Ms Irving also referred me to section 10 of the Children Proceedings (Parental Responsibility) Bill (which intends to reform and consolidate the law relating to responsibilities and rights of parents for children) states that: there is provision for a child to be removed from Hong Kong without the consent of the other parents, if leave of the Court is obtained.

Section 10 Consent of Notification required for certain acts relating to children

(1)  If a child arrangements order is in force with respect to a child, a parent having parental responsibility for the child may not do any act specified in subsection (2)—

(a) without the consent in writing of every other    person who has parental responsibility for the child;

(b) without the leave of the court.

(1)  The act is—

(c) causing the child to be known by a new surname;

removing the child out of Hong Kong for more than 1 month; or

(d) removing the child permanently out of Hong Kong.

[emphasis added]

53.  On the first point on jurisdiction, which covers most of the argument, I appreciate Ms Irving’s careful and informative analysis which I agree. After careful reading, the areas governed by rule 94(1) of the MCR and section 21 of CACO are not identical. Section 21 of CACO is preventive. It is clear from the wordings that any person who has custody or access to the child can apply for an order to prohibit the child to be removed. Rule 94(1) is the procedure that a party should rely on in applying leave to remove a child to another jurisdiction. The LRC Report’s preference on Children (Scotland) Act simply shed light on how the legislation should progress forward. I could not have relied on merely the preference of the LRC Report in to conclude consent of both the father and mother are necessary in applying for leave to remove a child from a jurisdiction.

54.  In applying CACO, the father can at all times to apply for such order should he found child J might be facing such risks. Nevertheless, this is unrelated to the mother’s application for relocation of child J to Szczecin.

55.  This Court has been hearing and determining removal (or relocation) applications.  Ms Yip’s scenario would be impractical and unworkable in reality. For instance, in situations where the other parent has “custody of or access to the child”[12] might not be able to be located or for some reason refused to give consent to remove a child out of the jurisdiction, the result would render a child (or child J in this case) be in a predicament.  The parent who wished to remove the child would never be able to do so. It creates absurdity.

56.  In the arena of statutory interpretation, the intention of legislation must be construed against absurdity (See Bennion on Statutory Interpretation, Diggory Bailey and Luke Norbury, 7^th edition, page 359). The relevant part of the literature is quoted as follows:

“Section 12.1 Presumption that ‘absurd’ result not intended

12.1

(1) The court seeks to avoid a construction that produces an absurd result, since this is unlikely to have been intended by the Parliament. Here, the courts give a very wide meaning to the concept of ‘absurdity’, using it to include virtually any result which is unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial, or productive of a disproportionate counter-mischief”.

(2) The strength of the presumption against absurdity depends on the degree to which a particular construction produces an unreasonable result.

(3) The presumption may of course be displaced, as the ultimate objective is to ascertain what the legislature intended.”

57.  Apart from the above, this Court has been disposing of numerous relocation applications throughout the years. Apart from that this Court to have day in and day out applications for removal, be it on a temporary basis, usually for the purpose of holiday, visiting relatives, school tour or education; or on permanent basis, usually relocation. It is not unusual that at times, the other parent did not appear in the hearing or would oppose such application. This Court has routinely deal with the said applications. In granting leave in the said situation, this Court would give an order that the consent of the other parent be dispensed with. If Ms Yip’s view is to be practiced in this Court, where only consent applications can be entertained, this is obviously creating removal or relocation applications, either without consent of both parents or either parent to oppose, impossible and futile. Obviously, it goes against the rationale or legislative intent to protect the child and to be certain of his or her whereabouts at the age below 18. Rule 94(1) of MCR is a mechanism to safeguard the whereabouts of the child and to provide a channel for a parent to remove the child out of the jurisdiction. This Court is empowered to grant leave for removal and or relocation in these circumstances. If one could not rely on rule 94(1) of MCR, the situation any child, if no consent be obtained from both parents would be unable to leave the jurisdiction at all.

58.  I bear in mind that it is the practice of this Court that usual removal restrictions[13] would be added to the custody orders either on the Court’s own motion or on parties’ requests. Parties can at any time to apply for a general or temporary uplift of such removal restrictions with filing of an undertaking to bring the child back to the jurisdiction and a consent for the other parent.

59.  On both the interpretation of legislation and practicality, I share Ms Irving’s view and analysis and Ms Yip’s argument on this point failed.

Jurisdiction point – issue (b) - rule 94(1) of the Matrimonial Causes Rules (Cap. 179A) (“MCR”) or section 21(3)(a) of the CACO

60.  Ms Yip submitted, rule 94(1) of the MCR is a subsidiary legislation and cannot override the primary legislation, section 21(2) of the CACO.  Rule 94(1) itself is problematic and almost incapable of being applied. Its application is expressly “subject to rule 97(2)” which has been long repealed.

61.  Section 21(3)(a) of the CACO only applies when a party applies for an order prohibiting the removal of a child out of Hong Kong.  The purpose of section 21(3) is “to prevent a person from breaching subsection (2)”. The mother’s suggestion that section 21(3)(a) provides the basis of her application for an order permitting her to relocate child J is a non-starter.  The only order that can be made under section 21(3) is an order preventing the breach of subsection (2), or in other words, a restraining order or an order prohibiting removal.  It cannot be read as a stand-alone statue providing for jurisdiction permitting relocation. 

62.  Ms Irving clarified, although the mother did not state the specify provision to be relied upon in her summons filed on 9 December 2016, the mother’s application is not premised on section 21(2) of CACO but section 19(1) of the Matrimonial Proceedings and Property Ordinance, Cap 192 (“MPPO”). The application for leave to remove a child permanently out of Hong Kong is governed by rule 94(1) of the MCR that such an application is made to a judge in chambers. The primary legislation or order of custody and education of children affected by matrimonial suits is section 19(1) of the MPPO. Section 19(1) of MPPO empowers this Court to give orders for custody and education of children, the section reads,

“19. Orders for custody and education of children affected by matrimonial suits

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

(Amended 69 of 1997 s. 28)

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

(b) where such proceedings are dismissed after the beginning of the trial, either forthwith or within a reasonable period after the dismissal;

and in any case in which the court has power by virtue of this subsection to make an order in respect of a child it may instead, if it thinks fit, direct that proper proceedings be taken for making the child a ward of court.”

63.  Ms Yip argued, the mother’s reliance on section 19(1) of MPPO is also misconceived because this section does not empower the Court to make an order on removal, it only concern an order on custody and education of a child. In Hong Kong legislations, the terms of “custody” and “access” are used and the jurisdictions for making such orders are vested by virtue of section 10 of the GMO[14] and section 19 of the MPPO.  For some reason, the Hong Kong legislation did not enact any primary legislations providing for removal cases. The only legislative provisions which dealt specially with the removal of a child from Hong Kong were contained in subsidiary legislation: rule 94(2) of the MCR and Order 90 rule 5(3) of the RDC. That was the reason why the legislature called for the enactment of primary legislation on removal.

64.  Ms Irving further submitted, this Court has jurisdiction to make an order for removal is a matter entirely unrelated to section 21 of CACO. Section 21 of CACO is specifically stated under Part 3 of the Ordinance to be for the purpose of “Other Provisions Combating Child Abduction in Hong Kong”. With regard to steps to be taken to prevent abduction so that on an order being granted under this section to a person with rights of custody or access, removal is prohibited, unless with the consent of a person with rights of custody or access, or with leave of the Court.  

65.  What follows is that section 21(1) of CACO and section 19(1) of MPPO are not competing or conflicting jurisdictions; they are complementary, and fulfill different functions in relation to children. This is evident from the fact that CACO section 21(8)(e) specifically refers to orders made under section 19(1) of MPPO [15]. In defining what is meant by “child”, making it abundantly clear that an order made under section 19(1) MPPO is acknowledged under CACO as an order the Court has jurisdiction to make. There is no lack of jurisdiction for this Court to make orders for custody and education under section 19(1) of MPPO, as recognised in the wording of CACO itself, with the application governing the procedure for the application for leave to remove a child permanently out of Hong Kong being governed by rule 94(1) of the MCR.

66.  I agree with Ms Irving’s submissions on issue (b) of the jurisdiction point as well. I am unable to state that in clearer terms that the primary legislation on custody and education is section 19(1) of the MPPO. The right of custody includes welfare of a child of the family, to consider welfare of the child and to make important decisions for him or her. There is no exhaust list of categories of decisions. Relocating a child to another jurisdiction, bringing a child to live in another place would significantly have an impact to the child’s life and future. This should certainly fall into the “custody” category. For this reason, I see custody embraces relocation. As a result, rule 94(1) of the MCR gives the procedure framework of making the application itself for removal of a child. Likewise, in this case where no consent is reached, such application should be made to a judge in chambers. It is clearly defined in rule 2 of the MCR that a “judge” means “(a) in relation to proceedings pending in the District Court means one of the judges of the District Court.

67.  I fail to see Ms Yip argument under this head could be established.

Jurisdiction point – issue (c) – Practice Direction 15.12

68.  Ms Yip submitted, if removal of a child from the jurisdiction is to be dealt with under the CACO, this Court has no jurisdiction to determine such application because Practice Directions 15.12, Part D, paragraph 5 stated any applications made pursuant to CACO should be made in the High Court, Court of First Instance. The mother should have commenced her application for relocation in the Court of First Instance if she relied on section 21(3) of the CACO.

69.  I do not agree. The parties do not necessarily to take out an application in the Court of First Instance for removal of child out of jurisdiction. I note from the section 48D of the Matrimonial Causes Ordinance, Cap 179, which has come to effect in 2014, the section has expressly provided jurisdiction for this Court to deal with removal of child.

“48D. Order for prohibiting removal of child out of Hong Kong

(1) This section applies to a child of the family as defined by section 2(1) of the Matrimonial Proceedings and Property Ordinance (Cap. 192) who is under the age of 18.

(2) If a parent of the child is a party to any proceedings under this Ordinance, that parent may apply to the court for an order prohibiting the removal of the child out of Hong Kong, or out of the custody, care or control of a person named in the application, except—

(a) with the leave of the court; or

(b) on compliance with the terms specified in the order.

(c) Unless otherwise directed by the court, the application may be made ex parte.

[emphasis added]

(Added 16 of 2014 s. 19)”

70.  More particularly Order 121 of RDC specifically empowers an applicant to commence such application in District Court, not necessary the Court of First Instance.

“Order 121 Proceedings and Applications under Child Abduction and Custody Ordinance (Cap. 512)

1. Interpretation (O. 121, r. 1)

(1) In this Order—

Ordinance (《條例》) means the Child Abduction and Custody Ordinance (Cap. 512).

(4) Expressions used in this Order that are used in the Ordinance have the same meanings in this Order as in the Ordinance.

2. Mode of application (O. 121, r. 2)

Except as provided in the Ordinance, an originating application under section 21(3) of the Ordinance may be made by originating summons in—

(subject to subparagraph (b)) Form No. 10A in Appendix A; or

(b) (if the application is made ex parte as provided in this Order) Form No. 10B in Appendix A.”

71.  And also Order 90 rule 5 of the RDC which I have referred to earlier in this judgment.

“Removal of a child out of Hong Kong (O. 90, r. 5)

(1) This rule and rules 6 and 7 shall apply to proceedings under the Guardianship of Minors Ordinance (Cap. 13) and the Separation and Maintenance Orders Ordinance (Cap. 16).

(2) An application for leave to remove a child under 18 permanently out of Hong Kong must be made to a judge unless the application is unopposed, in which case it may be made to the Registrar.

(3) The father or mother of a child under 18 may apply ex parte to a judge for an injunction restraining the other of them or any other person from removing the said child out of Hong Kong or out of the custody, care or control of any person named in the application.”

72.  I am of the view the issue (a) to (c) on the jurisdiction point have been well answered. It simply cannot have been intended in the legislature that a child would be prevented to be removed to another jurisdiction. I am of the view that this Court has jurisdiction to determine application of removal of child out of jurisdiction in the absence of consent of the father.  

The approach to determine relocation

73.  The mother’s plan is to relocate with child J to Szczecin and to enroll him to study in SIS. The decision whether to allow this application involves an exercise of discretion and it requires a holistic and thorough consideration of all relevant matters having in mind the best interest of child J as the paramount consideration.  This application differs from one of expatriates returning to their homeland but an application to bring child J to a foreign country, Szczecin and away from his homeland, Hong Kong. The mother bears the burden of establishing that permitting the relocation will serve the best interest of child J.

74.  The Court called for a social welfare investigation report. Ms So, the social investigation officer compiled her report on 5 May 2017 (“the SIR”).Ms So made a recommendation in her report supporting the mother’s application to relocate child J with her to Szczecin. Ms So was called as a witness.

75.  The mother testified and had called KK, her husband as witness. The father gave evidence as well. Ms Ko’s (the father’s wife’s) affidavit was admitted without tendering Ms Ko to be cross-examined.

The social investigation officer, Ms So

76.  Ms So reported the background of the parties which I do not repeat it here.

77.  Ms So interviewed KK. During the interview, KK confirmed  he was prepared to take care child J with full understanding of child J’s physical and emotional needs. KK found himself for 2 years had developed very close and supportive relationship with child J. KK did not see taking care of child J was a difficult task for him. He always tried to be a friend of child J and to share his life experience with him. He will guide him to find solution and to think positively. Ms So was of the view that KK “impressed to be sincere throughout the interview”. Ms So had two occasions to see both KK and child J to interact, she saw both of them chit-chatted and the responses of child J to KK were spontaneous.

78.  Ms So conducted home interview with the mother, KK and child J at the mother’s home. Ms So said child J showed Ms So around the mother’s home, including the mother’s room. Ms So saw both the mother and child J prepared dinner; three of them played UNO; and football game between KK and child J. She found the interaction between the mother, KK and child J was intimate and close. The atmosphere was filled with joy and laughter.

79.  Ms So conducted home interview with the father, Ms Ko and child J at the father’s home on a separate day. She reported the interaction between child J, the father and Ms Ko. Child J was sitting on the sofa playing video games, he did not seem happy when brother J wanted to join. Child J took Ms So around the house. Child J returned to living room to play with brother J. Child J started to do his homework, he wanted to do it by himself and had requested the father to leave his room. Child J did not follow all his father’s instructions. Child J at times disagreed with what the father had told Ms So. Despite child J’s attitude, the father remained calm and patient. The father-son interaction was natural and spontaneous. Ms Ko also played a disciplinary role with patience to child J. For reason child J’s was not cooperative in the home visit, the father once requested Ms So to conduct an additional home interview, Ms So declined.

80.  Ms So enquired the mother’s view on relocation. She said “she could not and would not leave the child behind in Hong Kong in hands of [name of father] for she considered him [the father] not a suitable person to take care of and discipline [name of child J]. On the other hand, [name of KK] would not move to Hong Kong due to his well-developed career in Poland either. She wanted to start her family that could really give her and the child stability and love”.

81.  Ms So enquired the father’s view on relocation. The father agreed to arrange child J to study overseas but opposed to relocate child J to Szczecin. The father thought it would be better for child J to grow up in Hong Kong with his family and social networks. Choices of good international schools and the opportunity to use Chinese in Hong Kong is also an advantage. The father doubted whether child J could be properly taken care of by the mother as she has been engaged in a new relationship. The father worried about child J’s life in Szczecin where safety is one of the issue. Whilst the father complained of insufficient time on access, he could anticipate it would be of much less opportunity to see child J if he is relocated to Szczecin. The father foresaw it would be impracticable for him to visit Szczecin frequently. The father intended to ask for care and control of child J with the assistance of Ms Ko and his domestic helper.

82.  Ms So explored child J’s views when they first met in the mother’s home and two other individual sessions. During the 1^st interview, child J was scared to tell his true feelings to the father because he might scold him. Child J drew a family picture which consisted of himself, the mother and KK. He indicated to Ms So he wished to stay with the mother and KK; he wished to move to Szczecin and to have a childhood with nature. Child J has some concern that his father would take him from his mother. He wanted to be a dentist like KK. He was happy to have stayed with the mother. Child J sees the mother as his best friend. He said KK has been nice to him. Child J wished the father to stop bothering him by asking him to do things and to call him everyday. He tried to ignore Ms Ko because he had found her annoying. Child J said he agreed to relocate with his mother Szczecin without pressure. He wanted to make decision for his life. Child J would be very upset if he was unable to relocate to Szczecin . Child J said he could not imagine if he had to live with the father every single day because he recalled, at age of 6 – 7, the father lost his temper easily and hit his buttock with a ruler or a rattan cane. The father also placed him in a dark area when he had done something the father did not like. He perceived the father tried to make himself pleasant since last summer and had bought him gifts. Child J dared not to reveal his true feelings to the father. He would return to Hong Kong about three times a year to see the father.

83.  Ms So interviewed the domestic helper. She was married with no kids. She is ready to move to Szczecin . She said the mother was a nice person and treated her like a family member.

84.  In absence of an opportunity to consider the international social investigation report, Ms So came to the following conclusion: Ms So opined, from the starting point that the mother be determined to relocate to Szczecin with child J, the core issue is whether the mother or the father was “capable of providing the kind of care that served the best interest of the child (child J)”. Ms So observed the emotional bonding between child J and the mother was stronger than the father. The mother was a capable parent. She commented the mother “to prepare for the relocation of the child to Poland, the mother did much research on respective school and available extra – curricular activities for [name of child J]. This suggested the mother was a careful and thoughtful person”. Ms So then compared the effort the father with the mother. She said the father “was always out of town to perform work duties over the years. Did not need to deal with everyday matters of the child is more of a figure of fun and joy. This was not indicative to the father’s caring capability. As a matter of fact, the father’s experience in taking care of the child was limited to holidays only. His ability to take care of the child in the long run had yet to be tested out”.

85.  Ms So also take into account the mother’s view that the father might reduce the maintenance of child J and she had to work longer hours to make ends meet. The costs of living after relocation to Szczecin is much lower. The mother was open for access matters. Ms So noted child J’s strong view on relocation to Szczecin only that he dared not tell his father his true feelings.

86.  Having considered the above, Ms So came to a view that the mother has a genuine motivation to enable herself providing more personal care to child J in a less stressful environment. Coupled with the mother’s access proposals and well supported living in Szczecin, Ms So did not see the mother have any selfish motive to exclude the father from child J’ life. Ms So said, “if relocation is to be refused, the mother will likely be locked in a full time job to make ends meet while sacrificing the time to take care of the child and the marital relationship. It would impose much financial and emotional stress to the mother who was presently striving hard to maintain her emotional stability with the distant hope for her relocation plan to materialize”.

87.  What follows is the comment that “the father’s reason for opposing the relocation including wider choice for the child’s future life if the child grew up in Hong Kong and unstable social situation in Europe is not well grounded… It would be more beneficial for the child, particularly in his pre-adolescence stage, to safeguard a better here-and-now care provision by a happy mother personally, instead of sacrificing the quality of care for the unknown future”.

88.  Ms So concluded by saying “the best welfare and interest of the child as the ultimate concern, I tend to support the mother’s application for relocating the child, [name of child], to Poland”.

The international social investigation report

89.  In the international social investigation dated 25 April 2017. The officer reported KK was working in a dental clinic and earning PLN 20,000 per month. He does not have to pay rent and child support. His monthly expenses on public utility was around PLN 2,560. KK was living in a 5- bedrooms two-storeyed house with an area of 150 square metres. The house was inherited from his parents. The house was newly renovated with a room for child J. KK was in good health. The officer said KK could not accommodate Hong Kong market because of difficulties to afford renting premise for private dental practice.

90.  The officer briefly reported child J’s intended education plan. The mother has applied for an international school in Szczecin with an English curriculum. She has also arranged Chinese tuition for child J. Child J has spent his holidays in Szczecin during summer 2016. The officer was of the view that child J has demonstrated a very positive attitude towards the prospects of living in Szczecin. He particularly like KK’s house because he can have abundance space.

91.  The officer commented KK is “well-off for Polish conditions. In view of his declared financial, housing and living conditions, he can create a favourable environment for the appropriate care, unbringing and education of the minor [name of child J]”.

The mother’s evidence

92.  The mother filed 4 affidavits on 9 December 2016, 10 April 2017, 20 October 2017 and 27 February 2018. The 1^st affidavit contained 77 pages and was filed in support of her application to relocation; 2^nd affidavit contained 94 pages and was filed in reply to the father’s affirmation; the 3^rd and 4^th affidavits were done for the admission of child J in both SIS and the HK school pending this judgment. Due to the length of the affirmations, I shall summarize the evidence as follows.

93.  In the 1^st affidavit, the mother gave a general background of the relationship between herself and the father. She said both of them have very different parental style, she encouraged child J to do sports, music and to read. As she understood the father has spent time in gambling soccer and horse racing games, he seldom played with child J. The mother complained the father had exposed child J to inappropriate television programs, video games; and had spoiled him by providing too many electric gadgets; had practiced corporal punishment on child J. The mother complained the father stalked child J while he is on his way to the school bus station. The mother and the father always engaged in email exchanges as to how the other side is expected to be like in parenting child J.

94.  The mother said, she has difficulty to cover child J’s expenses. The father has been paying monthly maintenance at HK$46,000 and yet the mother said she could not make ends meet due to increasing living costs in Hong Kong. Her business was not doing well and the income as a private tutor was not sustainable. She has used up HK$1.5 million lump sum maintenance in the ancillary relief settlement with the father. She has to borrow money from her family to meet child J’s expenses in order to continue to stay in Hong Kong.

95.  The mother deposed her courtship with KK since 2014. She said child J and KK developed a close relationship and had enjoyed each other’s company. KK loved and cared about child J and had treated him like his own son. He is eager to help with the upbringing of child J and would provide guidance to him whenever is needed. KK understood he would not be replacing the father, he showed respect to the father-son relationship of child J and the father and has facilitated access of child J with the father. KK plays soccer, outdoor activities and board games with child J. The mother has discussed the possibility of KK to settle in Hong Kong. She knew it would be very difficult because of business risks and high costs in Hong Kong.

96.  At time when the issue on relocation was raised to the father. On the father’s rejection to the proposal, the mother complained the father has reacted in a way which had caused confusion and stress caused to child J. She learned from child J that he may attend suicide to end his life. Child J’s behavior changed since the commencement of his school term in 2016. The mother felt heart-broken to see child J to be caught in between both herself and the father.

97.  The mother illustrated her proposal of relocation to Szczecin by stating saying Szczecin is a large city in Northwest Poland and it is close to the boarder of Germany. It is a lively city and it has architecture was inherited from different ages. The city has a population of around 405,657 residents and it is surrounded by nature with rivers and lakes as well as plenty of amenities for sailing, fishing, horse riding and golf. Szczecin is also known as the “Floating Garden” with trees, lakes and rivers everywhere. The mother also discovered there are over forty Chinese restaurants in Szczecin.

98.  If relocation is granted, the mother and child J will stay as temporary residents in Poland for 3 years and will be receiving permanent residence as well as Polish passport thereafter. Both of them can keep their Canadian and HKSAR passports.

99.  The mother has prepared to keep up child J’s Chinese roots. She will maintain Chinese private tuition with a private tutor in town.

100.  Both the mother and child J will be staying in KK’s home. She described it as a beautiful 1,630 square feet 3-bedroom property with a front and back garden as well as large terrace on the 1^st floor. There is a foyer, a living room, a dining room, an open kitchen, a laundry room and 3 bathrooms. Child J will be able to have his own room and will be newly renovated.

101.  Child J visited Szczecin in 2016. He has been to Berlin Zoo, Tarzania (jungle tree climbing), National Landscape Park, AquaPark and Family Amusement Park, International Fireworks Festival and private boating. Three of them had a 2-day trip to Warsaw and went to Copernicus Science Centre. Child J has attended soccer camp for two days with boys at this age. Child J told the mother that he had enjoyed the trip and loved to stay in Szczecin.

102.  KK has family in Szczecin. His niece was at similar age with child J, they can get along well. Although the mother has no family member in Szczein, her sister is planning to move to London with her 2 sons. It would only be an hour’s flight to Szczecin. Child J’s maternal grandmother can travel to take care of him in Szczecin.

103.  The mother will continue to take care of Child J with her domestic helper. Child J can take afterschool activities like piano, cello, guitar, art, swimming, soccer and Chinese tutoring classes. Child J will join KK to church on Sundays and also outdoor activities as well.

104.  The mother planned to enroll child J to SIS[16]. She attended a school tour in February 2016 and formed the view that SIS is suitable for child J. She said SIS is one of the best school in Szczecin, it is an international co-education school; it is also a Cambridge International Examinations (CIE) Centre registered at the University of Cambridge; it is also a member of the International Baccalaureate Organization (IBO). KK’s home is only 5-minute drive or 20-minute walk from SIS. SIS is using English as a teaching medium, each class has 20 students. The school offers three international programmes leading to international qualifications: (i) International Primary Curriculum (IPC); International General Certificate of Secondary Education (IGCSE) and International Baccalaureate (IB). The students will do the IPC in primary school and IGCSE in middle school before preparation in the IB in their diploma years. During middle years, the students will prepare for IGCSE and they are examined in Languages, Humanities and Science; the students will start preparing IB diploma by chosen research topic. For students in their diploma years, they have do the Learner Profile and full diploma requires students to complete the three core requirements, namely (i) creativity action service; (ii) theory of knowledge; and (iii) extended essay and 6 other subjects.

105.  SIS is an English medium school and thus will not be a problem for child J. The students need to take a second language from a choice between German, French or Spanish. SIS also offered Polish lessons for both Polish or international students in accordance to their levels. The mother said she can assist child J in learning French and German. KK can help child J in learning German.

106.  SIS offered a wide range of clubs and extra-curricular activities for their students. The more senior students in SIS also take part in the Model United Nations conferences where they can improve their speaking, conflict resolution, diplomacy and writing skills.  SIS is equipped with an Olympic sized swimming pool, the Floating Arena Pool, for their swimming lessons. SIS also planned for ecological day and education trips; sports day and soccer tournaments; meetings with special guests from different areas; integration parties for students and teachers; national day parties; Christmas production with theatre performance; charity events and carnivals. SIS also held interschool activities with other education institutes.

107.  The mother understood it would not be possible for the father to have access with child J should her relocation application be granted. She proposed to vary the access arrangement in the consent order and will be open and flexible in arranging access. The mother indicated she will keep the father closely informed of child J’s performance in SIS as she has done in the past. Her proposal is as follows :

(i)  equal share of long school holidays of SIS;

(ii)  if the father so happened travelled to Poland, he can have access to child J after school and weekends with prior notice;

(iii)  to maintain Skype, Facetime and/or call child J every other day.

108.  With regard to financial arrangements, without taken into account child J’s orthodontic needs and summer holiday expenses, the mother gave the following account of child J:

(i)  the tuition fees for child J in SIS is PLN 3,500 (around HK$7,075   per month);

(ii)   extra-curricular activities PLN500 (around HK$1,010);

(iii)   school books & electronic gadgets for school PLN1,034 (around HK$1,948);

(iv)   transport to school PLN600 (around HK$1,210);

(v)   medical and dental care PLN 500 (around HK$1,010);

(vi)   extra-curricular activities PLN3,800 (around HK$7,680);

(vii)   entertainment or presents PLN500 (around HK$1,010);

(viii)   holidays PLN500 (around HK$1,010);

(ix)   clothing / shoes PLN800 (around $1,620);

(x)   insurance premium PLN500 (around HK$1,010);

(xi)   lunch & pocket money PLN1,000 (around HK$2,020);

(xii)   other transport PLN400 (around HK$800);

(xiii)   child minding, fees for domestic helper PLN3,120 (around HK$6,300);

(xiv)   uniform PLN300 (around HK$610);

(xv)   others such as airtickets & expenses in Hong Kong PLN 1,250 (around HK$2,530)

(xvi)   TOTAL: PLN18,304 (around HK$36,843).

109.  The mother proposed the father to pay for child J’s monthly expenses as agreed in the consent order. It would be in the advantage to the father because he has to pay less than now. She suggested a sum of PLN16,544 (around HK$31,174) per month. She further proposed the father to pay child J’s return airfare tickets and any other transportation costs for child J to travel to Hong Kong to have access with the father. She estimated it would be PLN1,250 (around HK$2,320) per month.

110.  The mother said she will be a housewife when staying in Poland and KK agreed to cover child J’s general expenses for his toys, musical instruments, presents, food, household, car and other general household expenses. 

111.  The mother is not varying the order for joint custody, she sum up the benefits in relocation to Szczecin of better housing environment, lower costs of living. She criticized bad economy environment in Hong Kong but increasing food, transport and education costs. As the father complained of deteriorating business, the lower daily costs living in Szczecin tallies with the father’s intention to reduce child J’s maintenance in Hong Kong.

112.  The mother further suggested air quality in Szczecin is better than Hong Kong; less pollution in Szczecin and the children in Poland are general happier, braver, not shy or daring and adventurous when compared with the children in Hong Kong. The lifestyle is far much healthier as they do not spend time playing computer games on computers, iPads or iPhones.  The children will normally use their imagination and creativity, learning as they play and observe. They also do a lot of outdoor sports. They can play, kick soccer balls and run on real grass without any restrictions. They are therefore healthier and stronger. The mother made a comment that most of the students in Hong Kong are being spoiled by their parents. Most of them are being looked after by domestic helpers and had become very materialistic, asking for toys and electronic gadgets. The parents in Hong Kong also spoil their children by showering them with presents and they are always playing with electronic gadgets. This is not the lifestyle that the mother wanted for child J.

113.  The mother said the standard of education of Poland is very high. In May 2015, the Organization for Economic Co-Operation and Development (OECD) prepared an international education ranking, Poland was placed 5^th in Europe and 11^th in the world, ahead of UK and US. The students in Poland study hard and get great results but at the same time do not have the pressure and stress experienced by the students in Hong Kong every day. There will not be significant changes to child J’s curriculum as SIS offers far more sporting opportunities for child J than in Hong Kong. The education system in Poland is better than Hong Kong. The competition in Hong Kong is also extremely fierce and recently more and more students in Hong Kong cannot handle the pressure they face at school and ended up committing suicide. A majority of Hong Kong students also have poor eyesight and back problems due to heavy school bags.

114.  In her 2^nd affidavit, the mother has emphasized on the access arrangements after the consent order. She said she has been accommodating and had encouraged access of child J with the father. The mother disagreed she had reduced access time, she responded by saying it was due to the tight business of the father, he could not have had access with child J at times. The mother further responded to the father’s allegation of avoiding him to participate in child J’s school life, she was happy to see the father to assist child J’s school work, especially Chinese.

115.  The mother replied the father always has issues on co-parenting. She complained the father rarely responded to her emails. She denied she had made decisions for child J without discussing with the father. The mother agreed child J was stressful after her suggested to relocate to Poland and a counsellor was engaged to help child J. She denied her behavior had changed after meeting KK.

116.  The mother replied to the father affirmation on language, weather, living environment, pollution, social stability, education and career prospects in Szczecin. Her emphasis was put on her intention that she and child J did not see Hong Kong a permanent living place for them. The mother agreed to preserve the Chinese roots and to maintain relationship with the father’s family.

117.  The mother said she will be a full time mother so she can dedicate her time to take care of child J. Given her strong bond with child J, it would not be in his best interest to separate herself with child J. The mother further said, where leave to relocate is refused, she will be in an extremely difficult situation. As a new wife, she has to stay with child J in Hong Kong and KK has to travel. It would be both unsatisfactory and unfair for both herself and KK.

118.  The mother did not agree to vary the consent order that the father should have care and control of child J. She saw child J did not have good relationship with Ms Ko. She recalled child J would call her up for quite a number of times during access with the father.

KK’s evidence

119.  KK filed an affidavit in support of the mother’s application. He said he was born to a noble family in Poland in 1979. He has been a dentist for over 14 years with a stable income. He was raised in Szczecin with a younger sister of whom is married with a daughter of similar age of child J. KK’s father is a specialist in dental prosthodontics and his mother is a nurse in a hospital.

120.  KK has been travelling to Hong Kong once or once every two months be with the mother and child J since starting courtship with the mother. He usually stayed for 10 – 14 days. KK described the mother, child J and himself have lived together as a family. KK proposed to the mother in November 2015. They were married on 18 December 2016 in Hong Kong. After the wedding ceremony, KK, the mother and child J went to Vancouver to meet the child J’s maternal grandmother.

121.  KK said he was able to bond and to spend time with child J. He has been keeping in touch with him via FaceTime or on phone when KK was in Poland. Their relationship has developed event closer after child J had made a trip to Szczecin. KK loves children and is fond of child J. He found child J a nice, caring and funny boy. Both of them have similar personalities as they both like to laugh. They shared similar interest and love the mother very much.

122.  KK emphasized he had spent time with child J to play soccer. He taught child J the skills and tricks in playing soccer. KK had also arranged a soccer camp and a meeting for child J with the professional soccer players for Pogon Szczecin Football Team during child visiting Szczecin in August 2016. Child J has made some friends already. Apart from that both of them watched movies, went boating, and discussed about dentistry. KK said he loves and cares about child J. He will support child J’s emotional and physical needs. Both KK and the mother agreed they should raise child J in Poland.

123.  KK found both the mother and himself grew up in Europe and saw the benefit of raising a child there. KK believed it is in the best interest of child J to relocate to Poland for a better quality of life. KK echoed with the mother that Szczecin has easy access in nature. Huge spaces with ample opportunities for sports which is within distance from KK’s home. Child J will be able to enjoy playing soccer on real grass and riding scooters and bikes. Child J can avoid smog and pollution as well. With regard to SIS, KK believed it is one of the best school in Szczecin and is located close to his home. KK purchased a new family car and he is happy to drive child J to school every day safely.

124.  KK has remodeled his house between January and February 2016. Child J is able to have a big bedroom with his own private bathroom and foyer. KK will further arrange to build a children’s play area in the garden at the back of his house and eventually a children’s play area in on the terrace on the 1^st floor. KK will look for a queen sized bunk bed in child J’s new bedroom.

125.  KK assisted the mother to do research for child J’s education, extra-curricular activities. KK has family and relatives in Szczecin and will be able to provide good support network for the mother and child J. Child J took part in taking care of KK’s dog at home.

126.  KK will do his best to help child J to settle in Szczecin. He has flexible hours to work in his dental and implantologist clinic. There are days that he would only need to work for few hours if he had major surgeries to do. KK has weekend off. He can afford a lot of free time for child J. He can go with child J to the park for cycling after child J has finished his homework. KK is planning to buy a boat after child J has relocated to Szczecin.

127.  KK was thrilled to have the opportunity to raise child J. He has no intention to replace the father, he is only child J’s step-father. He and the mother will continue to support the father-son relationship between the father and child J. KK will cooperate and work with the mother in facilitating child J’s access with the father. KK will encourage child J to use phones, Skype or FaceTime and he will remind child J to call the father whenever his has forgotten to do so.

The father’s evidence

128.  The father filed 5 affirmations on 4 January 2017, 21 February 2017, 12 May 2017, 14 September 2017 and 13 October 2017. The father opposed child J to relocate to Szczecin, he explained he is now asking for a variation of care and control because the change of attitude of the mother since meeting KK and the inadequate access with child J throughout the years. The father agreed to the consent order in 2010 when child J as 3.5 years old, as he has grown up, the father found the access arrangement in the consent order inadequate. The father requested the mother to review the access arrangement but the mother did not give a positive reply. It was only when the mother is prepared to discuss the access issue in 2016, the mother’s intention to relocate child J to Poland was first made known to the father. Notwithstanding the application for variation of care and control, the father is asking 50% share of child J’s school holidays, daily phone access and staying access of 4^th or 5^th week of the month.

129.  The father proposed the mother to relocate to Szczecin with KK first and a variation of care and custody of child J to the father in the meantime. After she has well settled in Szczecin and when child J has reached 12 years old, in Grade 10, they should decide whether to send child J to a boarding school, not necessarily in Szczecin. The father will aim for child J to continue his higher education in Canada with his family support, yet he will respect child J’s decision to relocate to Szczecin with the mother when he reaches 15 years old which the father considers him mature enough to do so.

130.  The father was aware of the change of child J’s attitude after the mother’s intention to relocate to Szczecin surfaced. The father found child J was unwilling to talk openly with him and had become more reserved in their conversation. The father guessed it was a result of loyalty conflict between both himself and the mother.

131.  The father updated in his 4^th affirmation that he has changed his job since January 2018. He is now working as a managing director in a media company mainly servicing inflight entertainment. The remuneration package is similar to his previous job. The only difference is to travel less. The main reason is to enjoy more time with child J and his family.

132.  The present access arrangement was (i) dinner access on Tuesday from 6:15 – 8:45 pm; (ii) 1^st and 3^rd weekend of the month, staying access from Friday 6:45 pm – Saturday 9:00 pm; (iii) 2^nd and 4^th weekend of the month, day access on Saturday from 9:30 am – 8:45 pm; and (v) no access arrangement on 5^th week of the month, if any. The father first explained the necessity to review access because the consent order was made at time when child J was 3.5 years old.

133.  The father complained he could not have phone access with child J at times because the mother only allowed phone access on fixed days or with prior notice. The father initiated to review the overall arrangement in or about December 2015, there were not fruitful discussions and the father later learned in December 2016 that the mother had remarried KK and will take child J with her to live in Szczecin. The father thought the mother was selfish to relocate child J to a foreign place where she herself has no experience in living there. All along, she has had only maintained long distance relationship with KK. The father sees Szczecin a foreign place, child J may not adapt. He anticipates access with child J would be more difficult if child J had relocated to Szczecin. The father then took out an application for variation of care and control of child J.

134.  The father disagreed he has smooth access arrangement with child J since the consent order. The father complained he has only one staying access per week, he was unable to talk to child J on phone freely. He has to seek the mother’s consent each time for phone access with child J. He did not know the land line number of the mother’s home nor the phone number of her domestic helper. He was only able to contact child J through the mother. Since December 2016, the mother allowed daily phone access but has restricted the content of phone access of returning home safely.

135.  The father complained the mother was inflexible to facilitate make up access with child J should the father was on his business trip or to switch access days. Not only that, the mother has all child J’s school holidays, the father was unable to share child J’s school holidays unless he arranged an overseas trip. The father replied he had not been able to have access during school holidays because the mother said she has signed up activities for child J during that period.

136.  Be it a joint custody order, the father has difficulty in participating in child J’ life. The mother denied the father’s school access and did not welcome the father to participate in child J’s school activities. The mother never discussed child J’s school activities with the father. The father did not have a chance to see any of child J’s artwork or assignments. The father received no information from school because the mother did not register his contact number or email address with the school. The father was unable to watch child J soccer tournament because he was aware the mother will be unhappy to see him. He once watched the tournament at a distance from the football pitch. The mother opposed the father’s presence at Speech Festivals. Having experienced the above, the father will receive bills and invoices for child J in September every year which child J has taken last year.

137.  The father was only able to reach out to the school after their mediation in December 2016. He paid his first visit to school and had talked to the school teachers. The father explained he did not insist to reach out child J’s school because he wanted to avoid child J to suffer from unnecessary stress due to parental loyalty conflicts.

138.  The father explained “the stalking incident”. He said he intended to meet child J only that the mother had been sending child J to the school bus station in that morning. The father tried his best endeavor to meet child J, even for a short period of time while waiting school bus.

139.  The father complained he could not be able to have access with child J when the mother and KK were out of town. It is agreeable for the father that child J is being looking after by his maternal grandmother when the mother is away from home. On days when the mother was out of town, the father said the mother refused to allow him to take care child J, even when both of their homes are within walking distance. The mother replied child J was in good hand and has to meet school schedules. Child J was left alone to stay with the domestic helper.

140.  The father explained he has demanded to increase the frequency of access with child J prior to the knowledge of the mother’s relocation plan. He thought the mother had put the blame on him to have cause unnecessary stress on child J. The father was of the view child J became stressful because of parental conflict and of the uncertainly whether he can relocate to Szczecin with the mother.  

141.  The father was not comfortable with KK as he has found on youtube clips depicting KK was a womanizer, the father was unsure whether child J could be taken care of in good hands. The father once learned a fight between the mother and KK while his domestic helper was sending child J to the mother’s home. The father could not reach the mother via mobile phone. His domestic helper report to him that KK was being locked outside the mother’s home with his luggage. He understands couples do fight at times, the only thing the father worried would be child J, without a place of refuge if a fight occurred in Szczecin.

142.  The father did a thorough research on Szczecin including language barrier, social instability, weather and pollution in Poland. The father came to a view that education and career prospects were less promising. The father commented SIS provides no information on its education quality. The best schools in Poland were located in Warsaw, the capital city. The father doubted the quality of education that child J will be receiving in Poland. The father emphasized the lack of choice of school in Szczecin, child J does not have an alternative if he finds SIS does not suit him. The father did not see child J can obtain adequate Chinese language education in Szczecin, he recalled the mother had agreed in the consent order that child J should be educated in both Chinese and English medium school.  The prospect to enroll child J in universities in Poland was not satisfactory. The father believes if child J could be raised in Asia, he would have a better prospect than that in Szczecin. The father expects child J could develop his career in Asia, he sees job opportunities and career in Asia or mainland China will grow continuously.

143.  The father doubted child J could make a decision for himself when he has only been to Szczecin as a tourist for a short period of time. The father expected difficulty in access if child J had relocated to Szczecin. There is no direct flight from Hong Kong to Szczecin.

144.  The father suggested he has a strong family ties in Hong Kong. Child J has good relationship with his great-grandmother, grandmother, grand uncles and aunties, uncle and aunties and 3 cousins plus other members of the extended family. The father said he is still in good relationship with the mother’s brother and his family. Child J can meet with all his family members anytime. The father has his extended family in Toronto, Canada, he usually brought child J with him to see them once every 2 years.

145.  The father said the mother has no adequate support in Poland. He doubted whether child J could be well acquainted with KK’s niece. The mother has her sister and brother in law in London, but still not within the vicinity. The father doubted the assistance from the maternal grandmother when she is already a senior lady. The most assistance would be her domestic helper but she is only in employment of the mother where that contract could be ended anytime.  

146.  The father recollected the activities he and child J have had during access. He recalled 13 overseas trips. Excursions to beaches, doing various ball games, reading Chinese books and newspapers, family gatherings, “men’s talk”, purchasing figures and so on.

147.  The father planned for child J’s education in Hong Kong. He complained the mother did nothing to come to a contingency plan prior to the determination of the relocation issue. The father considered a number of international schools with both IGCSE or IB curriculum. He emphasized Chinese or Putonghua teachings is a must.

148.  The father regarded bonding between child J and brother J is vital, especially at their present age. The father sees his younger son is now 2 years old, it is now golden time for both of them to develop bonding. Child J became more responsible after child J was born. He is patient to teach brother J what is good and bad; he reminded the father to bring to bring his “little brother” to his school events, such as sports day. Child J, the father, Ms Ko and the brother J had an excursion in Lantau Island in an Easter break. The father is happy to see child J to have taken care of his half-brother well.

149.  The father sought to vary care and control of child J to himself, he proposed to seek assistance from professionals to ensure the psychological well-being of child J. He proposed the mother should have half of child J’s school holiday, flexibility of access time when the mother returns to Hong Kong. The father will try his best endeavor to bring child J to Szczecin for access, daily supply of child J’s school and daily information, visitation of mother’s 2 cousins in Hong Kong and unlimited phone access with the mother.

150.  The father denied in his 3^rd affirmation that he has bought a lot of electronic gadgets to child J, in fact, he has selected suitable films, for example “The Avengers” or the “The Amazing Spiderman” for child J carefully. The father explained the VR google was meant to be for his work purpose. So happened child J had a chance to see it in his home and brought it back to show the mother. He said child J was in good hands at all times. On the other hand, the father was surprised to see child J had played the game “Clash Royale” on the mother’s cellphone when he has logged in to see the exact time.

151.  Ms Ko would escort child J between two homes. Ms Ko would wait at the corner and the mother’s domestic maid to pick up child J so as to avoid the mother meeting her and that would make the mother unhappy. The father said neither did he or Ms Ko had badmouthed child J. Neither did he nor Ms Ko has practiced corporal punishment on child J.

152.  The father did not smoke in front of child J, he picked up smoking occasionally again whilst Ms Ko was very ill. Child J was very conscious to ask him to quit smoking, the father recalled child J will throw his cigarettes to the garbage bin whenever he sees them at home.

153.  The father has been paying 100% personal expenses and 50% household expenses for child J since the consent order, he is confident that he is able to maintain and support child J financially.

Ms Ko’s evidence

154.  Ms Ko was not called to give evidence by consent of parties. She deposed in her affirmation of the following.

155.  Ms Ko is a media executive in the file/TV industry. She met the father in 2006, started courtship in 2008 and was married to him in 2012. Ms Ko recalled she was here for 99% access time of child J. As child J was the first grandchild of the paternal family, he attracted all attention of his father, grandparents and great grandparents when he was here. Ms Ko said the father will bring child J to beaches and outdoor activities during access. Ms Ko and child J has a good relationship, when child J was young, he will crawl into the father’s bed to sleep with them.

156.  Ms Ko shared a lot of child J’s feelings. Child J will talk to her about school, his friends. He will also share the ups and downs with Ms Ko. They will watch movies together as both Ms Ko and the father was working in the entertainment industry.

157.  Ms Ko described the relationship between child J and brother J. She said it was excellent. Child J was excited to meet his half – brother on the day he was born. Child J gave Ms Ko a lot of information on child care, including the choice on nursery. Child J welcomed brother J, the father and Ms Ko to bring him to Cub Scouts and other activities. When he finished, he will walk with brother J and hugged him. Child J once sent his old ambulance toy to brother J as a gift. Child J insisted Ms Ko and the father to bring brother J along in overseas trips. There were times when child J and brother J fight. Ms Ko and the father will make use of the opportunity to teach child J how to be a big brother and to take care of his half-brother.

158.  Ms Ko was diagnosed with breast cancer in 2015 after the half-brother was born. She had surgery immediately followed by 5 months of chemotherapy and 1- month radiation therapy. It happened during child J’s summer holiday and Ms Ko insisted to bring child J for overseas trip, leaving the half-brother at home taken care by her domestic helper, post-natal helper and grandmothers. Three of them went to Bangkok and Tokyo, child J got Ms Ko a statue of Budda and had wished her to recover soon. In another trip by the end of December 2015, Ms Ko has joined the father and child J as well. Ms Ko was happy to see child J had always cheer her up. Ms Ko had attained almost 90% recovery and had resumed work in March 2016.

159.  Ms Ko did no attempt to replace the mother. She encouraged child J to call the mother when he is in the father’s home. Sometimes child J had a temper and did not want to return to the mother’s home. Ms Ko would try her best to encourage to be good with the mother.

Should the recommendation of the SIR be adopted?

160.  Ms Irving submitted Ms So is an experienced social worker specialized in giving recommendations to assist the court on children matters.

161.  I note Ms So reported incidents of child J rejected the father, saying “I don’t want you” or “I don’t like you” during the father’s home visit; he “was scared to tell the true feelings to the father for latter would be angry and scold him”; child J “wished the father would stop bothering him”; child J recalled “the father also warned to send him to police station or drive him to Po Leung Kuk when he did not listen to him”;  the child J once said his father “tried to make himself pleasant since last summer [2016] and bought him gifts” after the father learned the mother’s relocation plan. In contrast, child J indicated KK is more favourable by saying KK “was his second best friend”; “When he was grown up, he wanted to be a dentist like [name of KK] who inspired him”; “he wished the father would stop bothering him. He wished [name of KK] to do nothing much because he was already so nice to him.”; “there was no pressure from anybody on him to make this choice….. Admittedly, he related to [name of KK] very well. He was very ready to go to Poland for his new life. It he was unable to go to Poland, he would be really upset.”

162.  Ms So relied on her observations and discussions with child J during home visits and interview. She noted child J’s strong view to go to Sczcecin with the mother but scared to tell his true feelings to the father. Ms So did not agree on the father’s opposition on grounds of education. She said it was far too distant to plan for the child on both education and career issues, she placed more emphasis on the current satisfactory care and control of the mother. Ms So had formed a view that the father’s parenting style is very different from the mother. The mother being more flexible. Ms So urged the father to change his parenting style so that irrespective the location of the child J, he will listen to the father and also to share his feelings with him.

163.  The approach in considering social investigation reports is well settled in Naziya Aslam v Rafaqat Ali (Custody and Removal) [2009] HKFLR 294, the Court of Appeal made observation on the status of a recommendation in a social welfare officer’s report:

“[27] It is important, however, that the status of a recommendation in a report from a Social Welfare officer is not raised to the status of a decision which should only be interfered with on grounds similar to an appellate court interfering with an exercise of discretion. The references to the cases referred to are instructive in this regard. Wood J in the case of Stephenson v Stephenson pointed out, at pages 1145-1146, that the role of the welfare officer was to assist the court by informing the court of factors which the court would otherwise not know. He went on to say that the officers usually conclude their reports with a summary of the factors for and against each course which it is open to the court to take. He then said “. . . in some cases, he or she may feel sufficiently strongly about a case to make a positive recommendation - indeed, on those occasions when they give oral evidence the court sometimes asks for the view of the welfare officer.”

[28] I would agree with Wood J, that the welfare officer’s position to make a recommendation should arise when the circumstances of the case are particularly clear. The welfare officer should not make a recommendation as a matter of course and should certainly not do so where it is a question of a balancing the relative merits of one course or another, unless specifically invited to do so by the court. The exercise of the judge’s discretion should not be trespassed upon.  In any event, it seems to me that the correct approach to a recommendation made by a welfare officer is set out in the judgment of the Court of Appeal in Re V (residence: review) [1996] 3 FCR 101 at p.110F:

‘In a judgment were a Judge gives reasons for his decision and those reasons demonstrate that his decision is not manifestly wrong he is not under any further duty to spell out his reasons for departing from the court welfare officer’s report. In this situation the Judge’s reasons for reaching his own decision are normally the very reasons for his declining to follow the court welfare officer’s recommendation.’”

(emphasis added)

164.  Ms Yip submitted I should exercise my discretion not to adopt the recommendation because:

(i)  Ms So did not conduct full investigation work, her  recommendations and conclusion on relocation is unsound and unsafe. Ms So has an overt preference to relocation, in light of the father’s application to vary care and control of child J, prior to investigation. She put emphasis on interviewing the mother, KK, the mother’s domestic helper with less emphasis with the father, Ms Ko and the father’s domestic helper. Ms So opted for one straight route whether to relocate but has not put sufficient effort to consider whether a variation of care and control of child J to the father is viable should relocation application be refused.

(ii)  Ms So was “shooting in the dark” when she came to a conclusion when the international social investigation report has not been released. She relied on documents provided by the parties, especially the mother and claimed she has had sufficient information of Szczecin.

(iii)  Ms So could not have fully understood the mother’s plan without paying attention to the education system in Szczecin.

(iv)  Ms So concluded the mother would be able to facilitate access of child J if relocation is granted because in past years, there was no record in the Court of varying access or visitation arrangement through litigation.

165.  Ms Yip further submitted Ms So was pre-occupied with her overriding concern that child J should remain with the primary carer, the mother. Under cross examination, when Ms Yip put to her whether there is a possibility of child J to remain in Hong Kong and a variation of care and control, Ms So simply said her concern is only that “who is the best person to take care of child J; who knows child J the most …. and the most important thing is the person who can support and raise him stays with him”.

166.  I agree with Ms Yip on the above submissions. I share the same view. With due respect, Ms So gave evidence on the premise that there be a single path whether child J should relocate. I regret to say Ms So might have omitted evidence in favour of the father’s opposition. I am unable to see Ms So has considered other relevant factors, or chose to wait for the release of the international social investigation report, then to verify the correctness of information provided by the mother and KK. She has limited her vision on the issue on relocation in her evidence, “when I prepared this report, my focus would be that… the primary concern would be the best interest of the child and the motive of the applicant”. When she was further asked about how she measures the best interest of the child, she said “I would look at the care of [name of child J] and how [name of child J] got along with his father and the mother and their relationships, and the child’s wish. That’s all.” 

167.  Having heard Ms So’s evidence that the father does not have a good relationship with the father, I asked Ms So whether it would be easier to improve the relationship if child J remained in Hong Kong. Ms So answered “I definitely believe the father is very concerned and loves [name of child J]”. She went on to say “if the father does not adjust his parenting style, even if the [name of child J] stays in Hong Kong, it does not mean the relationship between father and son will be enhanced by proportion”. She stressed child J wanted the father “to accept his opinion and listen to his opinions. If the father agrees that child J can go with the mother for relocation, child J will appreciate the father understanding him….”. I regret to say Ms So might have overwhelmed with the advantage and suitability on relocation and had left out the father’s love to child J throughout the years.

168.  Whilst the court certainly appreciates the effort of Ms So as the Court’s expert and yet in this case, the mother’s plan is to relocate child J to a foreign place, not returning to the mother’s homeland, with her newly-wed husband. Apart from child J being taken well by his mother, main carer, Ms So might have to investigate impartially whether it is suitable for child J to live with the mother in Szczecin. Ms So’s recommendation might be too focused on existence of the main carer and the wish of the child J.

169.  The Payne guidelines states the welfare of the child is paramount in relocation cases unless the Court concludes that such relocation is incompatible with the welfare of the child. What I could see from Ms So’s report is that she has only considered child J’s paramount interest on his welfare solely on the aspect of main carer and child’s view only. The SIR is not a comprehensive report. I shall only consider Ms So’s recommendation sound should I find the education and other aspects of relocation to Szczecin is of best interest of child J.

170.  I then work on the other tests on application on relocation as follows.

The relocation point – (a) is the mother’s application genuine?

171.  The mother applied for child J’s relocation after she has married KK in 2016. It is not in dispute the mother and KK had been seeing each other in 2014 and maintained a long distance relationship. The mother testified notwithstanding their geographical restrains, they were serious in their relationship. Nothing alerted me to the genuineness of the mother’s application to seek leave to relocate child J to Szczecin with after she has married to KK so as to avoid having a marriage in two places. Part of the mother’s plan of living in Szczecin is to get pregnant with KK’s child. As she has testified that she has almost passed the child –bearing age and she could have not waited for another 2 years to plan for schooling of child J.

172.  The only thing I would mention is the mother’s exaggeration on the beauty of Szczecin compared to the ugliness of Hong Kong. The mother has been living in Hong Kong nearly two decades, no evidence of the mother has indicated she has an intention to move away from this city prior to her remarriage.

173.  The mother was also being criticized of hypocritical when she said children in Hong Kong are mostly spoilt by parents with domestic helpers. She claimed to be a housewife but planned to bring with her the domestic helper to Szczecin. She asked the father to maintain the domestic helper at HK$6,300 per month and such sum being child minding fees.

174.  The mother portrayed schoolwork being too stressful for the students in Hong Kong. In this case, the father has rightly said, child J has been studying at all time in international schools. Such schools, be it teaching Primary Years Programme (PYP) curriculum or not, adopted a different approach of teaching and curriculum from local primary or secondary schools. Her argument child J being stressful might not stand and it would also be unfair to comment parents in Hong Kong being materialistic generally.

175.  Having said that, I accept the mother’s fundamental intention to apply for leave to relocate child J is to unite with KK in Szczecin as a newly-wed couple. She has no intention to exclude the father from child J’s life. I find the mother’s application to relocate child J genuine.

The relocation point – (b) is the mother’s application practical?

Szczecin, the place itself

176.  Ms Irving submitted, the mother and child J will live in KK’s home, in what appears to be a beautiful green city. Pollution is not an issue as it is in Hong Kong. She has shown pictures of road signs in English, as well as shopping and restaurants in English also. Her evidence is that neither she nor child J experienced any difficulty in not speaking Polish. The maternal grandmother has visited and loved being there, and managed perfectly well without Polish language.

177.  Ms Yip submitted Szczecin, Poland is not a suitable place for child J to live in. It is an entire foreign place as opposed to United Kingdom, United States, Australia or New Zealand. It is not an English – speaking country. Chinese would be minority. Szczecin is only 7^th largest city in Poland. Google search revealed Szczecin has only 7 Macdonald and 3 Starbucks outlets. The shopping websites are mainly in Polish. Szczecin is local but not international. Child J will have to be exposed to new environment, new climate, new language and new school.

178.  I find Ms Yip’s submissions on the mother’s evidence valid. For the mother to apply for leave to relocate child J to Szczecin, it is incumbent for her to portrait the place to be relocated a suitable and habitable place for child J. There are of course Chinese immigrants in Szczecin.  In this case, I am considering whether child J, a boy growing from birth in Hong Kong, would be practicable to relocate to Szczecin. I see the mother having pitched her case too high by saying parents in Hong Kong have spoilt their kids by allowing a materialistic life. The mother has all along engaging a domestic helper and it is ironic that she is now bringing her own helper to Szczecin as child minder as well. She testified KK does not require her to work and as a housewife, she is supposed to do household chores including bring child J to school which is only a short distance from home. So the answer will be, if there would be a choice for child J to live in, the mother’s argument that Szczecin ranks higher than Hong Kong could not stand.

179.  On this point, both the mother and the father has done thorough research on Szczecin. I see the mother on the one hand was selective to present Szczecin is a perfect place to live in. Be it Szczecin is a foreign place to Hong Kong people where we are not familiar with, Chinese is not a majority living there with Polish as the main language. I cannot discount Szczecin because it is not a popular foreign city in the eyes of people in Hong Kong. There must be pros and cons of living in every place. To be fair I accept both the mother and the father’s evidence on the city of Szczecin. I take a neutral view on Szczecin.

Assistance from extended family

180.  Ms Yip further submitted the support of extended family of the mother is very weak in Szczecin. The father could not have assisted because of long distance and physical separation. This is a very obvious constraint.  Nevertheless, KK has extended family in the vicinity, the lack of support from the father can well be remedied by KK’s assistance. Child J’s grandmother who is willing to fly over to Szczecin to help out. The maternal grandmother has already spent time in Szczecin and confirmed in the SIR, she was more than ready to travel to Szczecin to spend time with the mother and child J. The mother’s domestic helper will relocate with the family giving additional support to child J in the transition.  

181.  Ms Irving further submitted, the mother spent a lot of her childhood in Europe, so this is not “foreign” for her, and similarly, she learned languages as a child in the same way child J would.  Child J can become a Polish citizen and obtain an EU passport which will be to his benefit, as he can choose to study, work and live in any EU country in the future, if he so wished.I cannot comment to the contrary because this is the mother’s background and the fact for their change of immigration status after relocation.

Child J’s access

182.  Child J himself told Ms So that this would be enough access, and that “Facetime was very convenient for him to communicate with the father.”  Both parties made proposals for access in the event that relocation is granted. The mother proposes that on removal, the father will have access at least 3 long school holidays a year, including every Easter holiday and a month over each summer as well as alternating long holidays in October, Christmas, and February each year. Should he be travelling in Europe, he can have additional access there. He will have electronic contact with child J, by phone, Skype and Facetime.

183.  The father’s access proposal is asking for all the long holidays, such as every autumn leave in October, every winter leave in February, every Easter, and 6 out of 8 weeks in summer. Christmas would be shared.  The Mother shall enjoy 2 – 3 days public holidays, depending on the year and whether the days fall on a weekend, and 2 weeks in summer.

184.  I agree with the father for more access with child J should relocation be granted as weekly access has been disturbed. With the geographic constraint where one has to take more than 20 hours to travel to Szczecin, taking into account the length of school holidays and the father’s employment, it would be both difficult for child J and the father to travel frequently back and forth Hong Kong and Szczecin. It is appropriate for the father to have granted with more access time with child J during his long school holidays. 

Child J’s education

185.  Ms Irving submitted, child J has a place at an international school that he loved attending and should be fit for relocation and be enrolled in SIS.  Ms Yip submitted otherwise, she criticized the mother has claimed the education standard in Poland was very high, she further claimed Szczecin is a city known as “the floating garden” but KK was uncertain of the campaign.

186.  The mother gave evidence that Year 7 and 8 were the equivalent of the previous international school that child J had attended. The mother has paid school visit to SIS, she met and spoke to the staff (namely the school principal and teachers) and saw around the premises, including library and classrooms. She discussed class size, pastoral support, learning environment, school values, system of teaching, requirements of foreign languages, and activities or facilities offered to the students. The mother has identified Chinese language tutors and extra-curricular activities.

187.  The mother created an impression that English was everywhere in Poland. The mother then said there is another international school named “SAIL” which offered secondary school in September 2017 (which does not fit in her initial plan in taking out the summons by the end of 2016). SIS is the only choice for child J. The mother said during cross examination that should child J could not adapt to SIS, her next choice will be crossing the border and going to school in Berlin.

188.  I shall further elaborate this point under the heading whether child J shall be enrolled in SIS below.

The mother’s financial pressure

189.  The mother further said the costs around PLN12,000 to raise child J in Szczecin, much lower than maintaining child J in Hong Kong. The mother has omitted the costs of having access, air fare and accommodation, with child J should the father travel to Szczecin. So as should child J to travel back to Hong Kong for access. As she has relied on the father to maintain the child, her plan, actual access costs might be very high.

190.  The mother said she has financial pressure to stay in Hong Kong, relocating to Szczecin is helping her to reduce her monthly expenses. The ancillary relief arrangement between the father and mother was agreed in the consent order that the father to pay HK$1.5 million to the mother as clean break lump sum maintenance. The mother claimed the costs of living in Hong Kong is very high and she has almost used up the amount. KK deposed in his affirmation that he is willing to maintain child J in Szczecin. KK once testified they could have bought a house in Berlin if child J cannot accommodate SIS. The mother then said her business plunged and was assessed not necessary to pay tax.

191.  On the part of the father, he has been paying HK$46,000 per month as child J’s being 100% personal expenses and 50% household expenses. The father had once attempted to ask the mother to bear some of child J’s expenses when his job appeared to be unstable and when Ms Ko was diagnosed with breast cancer. The situation improved when the father has now changed job with a salary of HK$160,000 per month and Ms Ko to resume work with a monthly salary of HK$80,000 – HK$90,000 per month.

192.  I do not see the mother’s financial situation is that unsatisfactory. I see from the evidence that the mother and KK have some means. The father is only proposing child J to stay in Hong Kong until the end of 2019 where both parties could consider to send him to boarding school abroad. I fail to see the mother has actual financial pressure if child J were to stay in Hong Kong until the end of 2019.

The relocation point – (c) is the father’s opposition genuine?

193.  I accept the father’s opposition is genuine as well. His opposition is premised on the welfare of child J, not on his sole wish to keep child J in Hong Kong and make the mother’s life, as a new wife with KK difficult. The father’s concern in enrolling child J in SIS, a school in a foreign place, not homeland of the mother is valid and expected.  I disagree with the mother’s view that the father is all along is happy with his access when the father has demanding her to review access plans as early as 2015. The father is patient by all means and at all times by not disturbing child J’s schedule. I believe he has tried his best endeavour to save child J from having loyalty conflicts between he and the mother.  

194.  I am also alerted to the father’s open proposal to arrange child J to boarding school abroad by the end of 2019, when it has been agreed as the education plan of child J in the consent order. The father is merely proposing to carry out what has been agreed in the consent order with no intention to exclude child J from the mother’s life.

The relocation point – (d) detriment to the father if relocation granted? Relationship with the father & his extended family?

195.  Ms Irving submitted, the irony is that if the application is granted, this will serve to improve the father’s relationship with child J. But if child J is not allowed to leave, his relationship with his father will suffer. The mother complained the father has not respected child J’s view; but he has also denied child J has genuinely held a view to relocate to Szczecin. Child J became frustrated and had blamed the father does not try to understand him. Ms So said:  

“I think at the present moment Justin wants others to accept his opinion and listen to his opinions. …. If the Father agrees that Justin does want to go with the Mother for relocation, and Justin will appreciate the father for understanding him…… Justin will be happy if Father respects his view”

196.  On one hand child J demonstrated his eagerness to relocate to Szczecin, the father raised genuine concern on the set-back of the father-son relationship.  The father disagrees the mother said father – son relationship can still be enhanced given generous physical access as well as telephone or electronic access. As the father has mentioned, child J has been caught in a loyalty conflict since he and the mother has separated. The issue now is more imminent and serious. It is not surprising child J has showed rebellious behaviours, in particular, when Ms So came to visit the father’s family. I accept it would be equally genuine for the father to have child J in Hong Kong for a period first during which they could work on building up a better and stronger relationship and bonding. 

197.  I also take into account the father has only been told of the mother’s plan of relocation in their meeting on 19 July 2016 where it was supposed to be a meeting to review child J’s maintenance and access. On evidence of the mother, she has well planned to relocate as early as 2015. Ms Yip has raised various examples of the mother’s control over child J that the father could not have sufficient time (be it within the ambit of consent order) to have access with child J. I can see from here the father has tolerated the mother’s rigidness on access so as to avoid child J to be in loyalty conflict. The father has also avoided the mother in order not to make her unhappy. As a result of all these, I have no doubt to say the father-son relationship have room to improve. The detriment to child J and the father and their future relationship is not going to be offset by any extension of relationship with his maternal family. 

The relocation point – (e) impact of the mother if relocation refused?

198.  Ms Irving submitted the impact on the mother would be devastating. She is married and hoping to have a family with KK. As she said, at her age, she may need to opt for in vitro fertilisation technology (IVF) to have a child with KK. If she is prevented from moving now, her wish to have a second child will never be fulfilled. If she were prevented from moving when she has made realistic proposals that are supported by the Court’s expert, and that child J very much wants, this would inevitably cause distress that would inevitably impact child J.

199.  Ms Irving cited IDC v SSA [2015] HKFLR 404, when HH  Judge Bruno Chan found that refusing the Mother’s application and compelling her to continue to suffer emotional stress and financial insecurity. This was a case where the social welfare officer had not recommended removal, but the learned Judge did not follow the social welfare investigation officer’s recommendations as he could identify that the damaging effects on the child of retaining his mother in Hong Kong would far outweigh the benefits of the child seeing his father in Hong Kong every week:

“… 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.”

200.  Ms Irving further submitted, the same applies here save that Ms. So has herself identified the significant risk to child J if removal is not permitted. The distress caused to the mother and impacting on child J would certainly far outweigh seeing the father every week, or being in a school with better average examination results. The relationship with the father will be damaged if child J is not listened to and by the evidence, appears to already be suffering from the father’s incessant interrogation.Ms So indicated that child J is aware of the mother is under stress. This is not deliberate, but mother and son are close and he knows these proceedings are underway, and he himself has been stressed by the way the father and his wife have questioned him over the matter. The situation will be made worse for them both, and for no good reason.

201.  Having heard Ms Irving’s submissions, I consider the evidence of KK do have a bearing on the mother if relocation be refused. It was KK’s evidence that his business suffered substantially and seriously since April 2014 when he and the mother developed courtship in April 2014. KK further complained he has no means to cover the expense of two households and constant travelling expenses were high.

202.  Ms Yip pointed out that in fact KK was earning the same level of income between April 2014 and in 2017 when the international social investigation report was compiled. KK’s business did not suffer. I also note from KK’s evidence that he had won a luxury brand award in dentistry in 2017, he has been a frequent flyer. I agree with Ms Yip that KK has developed a constant travelling pattern, he has regular conferences to attend in places outside Szczecin. I certainly understand KK and the mother would very much like to stay in Szczecin to be more economical, yet on evidence of KK himself, I do not see the mother’s detriment would only be keeping status quo until the end of 2019.

The relocation point – (f) Is it best interest for child J to be enrolled in SIS?

203.  Ms Yip put much emphasis on this point. She submitted SIS is not an international school. Bad English was noted in the SIS website. SIS did not give a clear account of what curriculum is offered, it confused with the curriculum leading to Cambridge International Exams (CIE) with one of “key stage 3” which is one of the National Curriculum of England. The father once enquired from SIS of the average IB score of its students, in an email replied in October 2017, SIS stated the average IB score was 28.5 where the worldwide IB average score in May 2016 and May 2017 were 30.07 and 29.95 respectively. SIS has no transparency. It does not publish the students’ results on the webpage unlike international school in Hong Kong and Warsaw. Neither did it disclose which university the SIS students will go after completion of the middle school. The father has genuine concern to have enrolled child J to study in SIS as he is now in his adolescence, he needs good quality education to path his way to tertiary education.

204.  Ms Yip placed great emphasis on the SIS webpage. Be it is written in English, grammatical mistakes and wrong use of English were note throughout the entire webpages. The mother rebutted the problem could be cured by better proofreading from SIS. She said the school did good English during her visits and the email exchanges between the mother and the school were in good English. As there are no witnesses from school as of how the English grammatical mistakes come into being, it is difficult to say they have a bearing on the education standard. It might be either the usual English standard or their inadvertence in uploading the information with grammatical mistakes which will be seen by people around the world.

205.  I cannot criticize much about SIS. No witness from SIS is asked to give evidence of the school. The standard of SIS might not relatively be as high as international schools in Hong Kong or in major cities in United Kingdom or the United States, I could not draw a conclusion that child J could not fit in SIS.  I note the inappropriateness of English expression in the SIS webpage but yet the father’s evidence can only say this is unsatisfactory. I have no idea whether it was the general standard of SIS or it is the fault of the person doing proofreading. As the mother has arranged trial classes in SIS and child J has attended. SIS has subsequently given an offer to child J.  It must be the case that child J have met their standards. The mother also testified child J can accommodate to the school environment. She has been to the school tour and had met the teachers. I am satisfied on evidence of the mother, child J is suitable to be admitted to study in SIS.

206.  Nevertheless, although child J suits SIS, I see some truth in the father’s evidence, he articulates child J has no choice to study in Szczecin because SIS is the only school available in the vicinity. The mother testified her options were (i) attending SAIL, a new international school (started by September 2017) or (ii) attending other schools in Berlin. The mother said Szczecin and Berlin are close enough that only requires less than one hour travelling time. She can travel with child J to school in Berlin daily.

207.  In SMM v. TMM, the court has to consider whether the mother’s plan realistic, ie founded on practical proposals both well researched and investigated. If the application fails either of these tests, refusal will inevitably follow. I agree with the father child J has more choices in Hong Kong than in Szczecin. No evidence can be seen from the mother of the feasibility to have child J to be enrolled in a school in Berlin. A risk of child J been left with no suitable school was an issue go against his best interest. On this area, I find the mother’s plan failed to be well researched and investigated. Ms Yip has put it correctly that the mother would accept anything offered from SIS because of her urge to relocate with child J to Szczecin. It falls short of a thorough plan when there is no alternative for child J to study in Szczecin.

208.  The mother submitted her email with Ms Chi dated 10 October 2017 that child J will be better to be enrolled in a school offered IGCSE where such curriculum was more structured than Middle Years Programs in IB curriculum. I would not put much weight on Ms Chi’s letter. Firstly, Ms Chi was not been called as a witness at trial, her letter can mostly be taken as a comment to child J’s educational path. Ms Chi’s answer to the mother’s enquiry was oversimplified. I am not satisfied that Ms Chi’s letter was conclusive to determine child J’s learning or education path.

209.  The mother’s stance on choosing curriculum for child J was shaky. She first preferred international programs leading to internationally recognized qualifications, namely, International Primary Curriculum (IPC), International General Certificate of Secondary Education (IGCSE) and International Baccalaureate (IB). She then switched to preferring IGCSC over IB curriculum. She further switched to IMYC, another program offered at trial. I would have said every education system has its beauty in nurturing a student, if one has not tried out, it is very difficult for one to comment that particular curriculum does not fit a particular child. On the other hand, a child may suit more than one curriculum. On this point, I have no strong views on the curriculum that child J would have to be enrolled, whether or not IGCSE or IB. Having said that, the SIS website give self-contradicting information on what it offers. The SIS offers Cambridge International Exams (CIE) and grade 6 – 8 pupils will follow a key-stage 3 curriculum which falls under the National Curriculum of England. The only thing I would say is the mother is too eager to portrait SIS is a school suitable for child J and had been confused with the different curriculum that SIS has been offering. The mother brought herself embarrassment in her evidence.

210.  Ms Yip further criticized the mother has confused with the grade that child J will be enrolling in by September 2017. The mother said child J would be enrolling in grade 7 by September 2017. Ms Yip has put to her that child J will be in fact be studying grade 7 by September 2018 instead. The mother attempted to evade by stating SIS has been re-naming the classes. I assume the mother is eager to seek leave to relocate child J without detail investigation on the correct level of grade. To be fair to the mother, I do not see this fatal in her plan because usually, it is normal for schools to have assessment with the child and to decide which grade that student fits into. At times a child with higher ability may be assigned to a level higher than that he or she should have been and vice versa.  

The relocation point – (g) Child J’s Chinese language skill?

211.  Ms Yip submitted the impact of child J on relocation to Szczecin would be uprooting him from his homeland. Child J was born and raised in Hong Kong for 11 years, the father is a Hong Kong father and the mother has been living in Hong Kong for more than one decade. The consent order should be highly relevant in this area because it was the parties’ standards and common grounds to ensure child J to possess good Chinese ability and to preserve Chinese root. To achieve this, family relationship should be maintained and encouraged.

212.  Apart from that, as both the mother and father agreed child J should attain a good level of Chinese. The mother relied on the father to help child J with his Chinese homework during access. The mother testified she has arranged a Chinese tutor for child J in Szczecin. It must not be as much as studying in Hong Kong international schools with Chinese language curriculum. I also take into account the time child J can spare time to study Chinese when it is imminent for him to learn Polish as well. Child J’s Chinese language skill is expected to suffer should relocation be granted. 

The relocation point – (h) relationship with the father, his half-brother & his extended family if relocation granted?

213.  The father is being criticized of not involved in child J’s life since the consent order. He had only become hands on after the mother made known to him of her relocation intention. Ms So said child J had indicated the father had bought him more presents after the mother’s intention had made known to him. I do not see this is a fair comment to the father. I consider the father’s evidence in his affirmation (which Ms Irving has not much challenge) that he has been a caring father. Child J has just finished toddling at time when the consent order was agreed. The mother became hands on with child J whilst the father has business trips. The father has more than once requested for more access with child J but has not been entertained. The father was understanding enough not to attend child J’s soccer tournament but to watch child J far away from the football pitch. He was not granted telephone access with the child subject to the mother’s approval. The only means of telephone access was the mother’s cellphone. He could not have reached child J via telephone even he was living close to the mother’s home. The father could not access child J’s school as he testified he does not know he as parent can register with the school by way of email address. The same was done only after a mediation session by the end of 2016. Be it only few examples, I see the father’s difficulty in having more access with child J while he was growing up. I believe he had wished to be hands on with child J but was unable to do so.

214.  Ms Ko was not tendered to be cross examined. I also accept her affidavit evidence in deposing child J’s access time with the father.

215.  On this point, I share the view of the father that relocation of child J to Szczecin will deprive the father of regular physical access time with the father and the father – son relationship may suffer as well.

The relocation point – (i) Child J’s view

216.  Ms Irving submitted, in the light of his age and understanding, the Court is bound to consider the views of the child. Ms So confirmed child J’s understanding of the issue and the clarity of his views on relocation. The father disagreed child J has the capability to understand the issue.  The father, of course, did not want to give any credence to the reality of the situation and to the views that child J has firmly held. Child J is afraid to tell his father the truth, and is upset at the way the father treats him. Ms Irving invited me to meet with child J in her written final submission.

217.  Ms Yip argued, child J does not appear to understand the entire picture of the relocation plan, he simply wanted to be with his mother. Ms So gave an answer during cross examination that “child J hopes that the mother to be happy and he likes the mother’s husband of the 2^nd marriage.  So he wished the mother can have a happy life and wished that the mother can stay and live with KK.  Since if the mother is happy, so he would be happy, so he would like to go with his mother to Poland.”  This answer should be approached with care. A careful appraisal of this answer indicates that it is not based on a thorough understanding of all relevant factors; rather, the only message is that child J is a caring child who wanted to stay with the mother and wanted the mother to be happy.  His strong desire to relocate is to facilitate his mother’s pursuit of happiness rather than a true understanding of what will pan out for himself and his future. His good intention of making his mother feel happy may conflict with his best interest.

The relocation point – (j) the welfare checklist

218.  “Paramount Consideration” means simply that the interests of the child come before everything else, including claims and wishes of parents.

“The second question of construction is as to the scope and meaning of the words “... shall regard the welfare of the infant as the first and paramount consideration.” Reading those words in their ordinary significance, and relating them to the various classes of proceedings which the section has already mentioned, it seems to me that they must mean more than that the child’s welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare as that term has to be understood.”

J v C[1970] AC 668 at 710 per Lord MacDermott

219.  Having considered the above, I share the view of the father that his proposal is more realistic, practical and is cater for the best interest of child J.  The father suggested that child J shall attend an international school in Hong Kong jointly chosen by the parties for at least another two years – during which the mother shall continue to have care and control of child J (if she chooses to stay in Hong Kong as she now says so) with reasonable access to the father.  After that, the father is agreeable to sending child J to study abroad, say a boarding school in the UK or Canada. He is open for discussion of the options with the mother. On the other hand, if child J still thinks he wanted to relocate to Szczecin, he can decide that by the end of 2019 which the father is willing to let him go. The father did not intend to possess child J in Hong Kong but only asking to two years from trial (by end of 2019) for child J to finish 2 more years of education in Hong Kong. I side with the father that both himself and the mother should sacrifice themselves for the best interest of child J.

220.  I also share the view of the father that child J’s view to relocate to Szczecin because he is still young and not mature enough appreciate if relocation suits him.

Conclusion

221.  Deciding the application is no easy task. I am facing with both the mother’s application and father’s opposition being genuine, not to exclude the other side from child J. I have the mother’s plan which is somehow practical and the father’s solid criticism on issue of education in SIS. I take into account child J’s wish that he is happy to relocate with the mother to Szczecin. Nevertheless, having said that, I am not comfortable with the father – son relationship should child J be relocated. Be it there are Facetime and Skype which child J can have access to the father at all times. I see child J’s wish as recorded in the SIR that he would only wish to return to Hong Kong for physical access occasionally. I agree with the father’s saying that child J would be uprooted from his homeland. I also take into account how access from the consent order in 2010 until the application for relocation by the end of 2016. The father has continuously requested the mother to review access but was in vain. With limited access time with child J since he was 3.5 years old, total failure of telephone access even both the mother and the father have been living only few blocks away, absence of the father’s participation in child J’s school life and continuing criticism of how access has been carried out by the father almost each and every access, the father has been deprived of many precious moments of child J I believe every parent would treasure. I am of strong view the father – son relationship should be maintained and enhanced which outweighs him to be relocated to Szczecin at this moment of time.

222.  I agree with the father’s proposal, which is fair and workable, that the father did not intend to keep child J in Hong Kong but to only keep the status quo for two years from the date of trial (i.e. until end of 2019) and to consider sending child J to a boarding school, not necessarily in Szczecin. I note the time of handing down this judgment, I see preserving status quo for child J during this period would be of his best interest. Time to review child J’s education plan will be best as the father has proposed, i.e. by the end of 2019, 2 years from the trial of both summonses in October 2017. The father’s proposal tallies with both the mother and the father’s intention in the consent order in 2010. Even if the mother did not remarry, the parties are expected to consider sending child J abroad for study nearly this time. Such time will lapse soon. I hope both parties could endure both family life and work on plans for child J, to his best interest in the future and also in accordance with their initial intention at time of the consent order. During such period, both the mother and the father should learn to improve their parenting skills, co-parenting skills and the communication skills.

223.  With the foregoing reasons, I exercise my discretion not to adopt the recommendation of Ms So as recorded in the SIR.

224.  Considering the foregoing analysis, I do not see granting the mother leave to relocate child J to Szczecin and leave to admit child J to SIS is of his best interest.

225.  The father’s application to vary care and control of child J shall also fail as he has indicated in the outset in event the mother’s application did not succeed.

226.  I therefore make the following orders:

(i)  the mother’s (the petitioner’s) summons filed on 9 December 2016 be dismissed;

(ii)  the father’s (the respondent’s) summons filed on 4 January 2017 be dismissed;

(iii)  there be a costs order nisi that there be no order as to costs of both the mother’s (the petitioner’s) summons and the father’s (the respondent’s) summons. The costs order nisi shall be made absolute unless either party to apply to vary with summons within 14 days from the date of this judgment.