H v. W

CACV 81/2021

[2021] HKCA 733

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 81 OF 2021

(ON APPEAL FROM FCMC 8332 OF 2017)

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JUDGMENT

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The Court:

INTRODUCTION

1.  The petitioner and the respondent are respectively the Father and the Mother of a 5 year old girl A.  Pursuant to her judgment handed down on 10 November 2020 (“Judgment”), Family Judge Melloy (“Judge”) granted amongst other things leave to the Mother to permanently remove A from the jurisdiction of Hong Kong and to relocate to Singapore with effect from the uplifting of the travel ban between Hong Kong and Singapore (“Relocation Order”).  By her ruling of 27 January 2021, the Judge refused leave to the Father to appeal against the Relocation Order.

2.  The Father obtained leave to appeal from the Court on 25 February 2021 and the Relocation Order has been stayed pending the determination of the Father’s appeal.

3.  By his Notice of Appeal filed on 3 March 2021, the Father asks for the Relocation Order to be set aside, the Mother’s summons issued on 12 March 2020 (“Relocation Summons”) be dismissed, and further the Father’s amended summons for shared care and control of A issued on 7 January 2019 (“C&C Summons”) be remitted to the Family Court to be determined afresh.

4.  Father’s C & C Summons was issued some 14 months prior to Mother’s Relocation Summons and had been fixed for a 7 day trial to commence on 5 May 2020.  It was less than 2 months prior to the trial that Mother issued her Relocation Summons.   

5.  As a result, the original trial dates for the Father’s C&C Summons in May 2020 were vacated and both summonses fixed for a trial in July 2020 before the Judge.  Although second in time, the Relocation Summons ended up to be the focus of the trial, and it was upon relocation, that A’s care and control was granted to the Mother. 

6.  Mother’s Relocation Summons consisted of two applications, the application to relocate and an application to change A’s name.  For reasons set out in the Judgment, Mother’s application to change A’s name was dismissed. There was no appeal against this part of the Judge’s order.

7.  At the trial before the Judge, both parties acted in person.  Recently, Father’s former solicitors have come back on record, and Counsel Mr Eugene Yim and Ms Vivien Leung appeared for Father for the present appeal.  Mother appeared in person.

RELEVANT BACKGROUND

8.  The brief background of this matter has been set out in paragraphs 11 and 15 of the Judge’s judgment of 10 November 2020.

9.  In short, the parties married in February 2013.  A was born in October 2015 and the parties started living apart in separate households in about January 2016.  Their marriage lasted about 3 years.  Father issued a divorce petition in June 2017 and a decree nisi was granted in January 2019.

10.  By a court order dated 15 December 2017, the parties have joint custody of A, with interim care and control to the Mother and interim defined access to the Father (“2017 Order”).  Mother and A moved out from the former matrimonial home on 18 April 2018.  Joint custody was not in issue and subsequently, on 30 July 2018, there was a further order in relation to A’s arrangements (“2018 Order”). 

11.  Thereafter, A’s weekends were split between the Father and the Mother, with the Father having overnight access on one other day per week and lunch time access on Mondays.  A’s school holidays had been split on 50:50 basis. 

12.  Mother first informed Father in January 2020 about her intended move to Singapore with A.  The parties were not able to come to any agreement on the relocation, which led to Mother issuing the Relocation Summons. 

13.  The Relocation Summons was supported by the Mother’s 10^th affirmation filed on 12 March 2020.  Mother had worked between August 2007 to August 2011 at the Hong Kong office of a Singapore recruitment company owned by a Mr N. The Hong Kong office was later closed and Mr N continued to run the Singapore company in Singapore.  Mother’s evidence was that she and Mr N were very good friends and that they started a romantic relationship in 2019 and Mr N had offered her a post in the legal division of his company and the post would offer Mother flexibility to care for A.  It was Mother’s evidence at that time that it was agreed by Mr N that Mother would become a shareholder in his business and that as a co-owner of the business, she would have better job security but there were no details given by the Mother as to the amount of equity she was to have in Mr N’s business nor did she reveal her former romantic relationship with Mr N.  

14.  Further details emerged later.  Mother met Mr N when she was working in the Hong Kong office of Mr N’s recruitment company in August 2007.  She and Mr N started to have a romantic relationship sometime in about 2008 when both parties were married but separated from their respective spouses.  In 2010, Mr N opened a fitness/yoga business in Hong Kong and he gave Mother 10% to 20% sweat equity in that business.  Mr N moved to Hong Kong to run the business which turned out to be unsuccessful.  It was closed down in the summer of 2011. The Hong Kong office of Mr N’s recruitment company was also closed.  Mr N then returned to Singapore while Mother stayed in Hong Kong.  In other words, the relationship between Mother and Mr N lasted about 3 years, after which both parties went their separate ways, and they did not reconnect for some 8 years thereafter.

15.  Mr N and his then wife later divorced in 2016.  Mr N has 3 children by his former wife, who were respectively 24, 21 and 14 years old at the time of the trial.  His son, the oldest of the 3 children, was living and working in the United States, and his older daughter was attending university in Singapore and was staying in a hostel on campus and would spend weekends with Mr N.  His younger daughter was living with his former wife in India and would visit Singapore once or twice a year.

16.  According to Mr N’s evidence during the trial, since after August 2011, apart from email or phone communications about a particular few cases Mother was working on at that time, he and Mother had not been in touch with each other.  It was in 2019 that they re-connected.

17.  Mr N said between 31 July 2019 and December 2019 Mother had travelled to Singapore about a couple of times and that he came to Hong Kong about a couple of times, the last time being Chinese New Year 2020.  They met in person a total of about 5 to 6 times before the pandemic, but they were talking almost every day on the phone.  Mr N’s evidence was that he first spoke to Mother about a job between September and October 2019.  He did not offer any employment to Mother.  Instead, in October to December 2019, he invited Mother to invest and take up equity in his business.

18.  According to Mr N, Mother had sat on his proposal, and eventually paid USD 150,000 on 31 March 2020 to acquire 20% equity in his recruitment company and Mother was to acquire a further sweat equity of 20% over 2 years, and that she was to end up with 40% in the company.

19.  Further, according to Mr N, he was first connected to A on What’s App in March 2020.

20.  The relocation was ordered by the Judge to take effect from the uplifting of the travel ban between Hong Kong and Singapore.  Pursuant to the Relocation Order, the 2018 Order was varied for the Mother to have A’s care and control upon relocation.  The Judge further made an intervening order for defined access for Father for the period between the handing down of her judgment and the relocation (“Intervening Order”).  In brief, since the Intervening Order, A’s weekends have since been alternated between the parties and in addition, A shall be in the care of the Father for one night following his weekend access and for two nights when he does not have weekend access.  The lunch time access on Mondays was discharged but the rest of the 2018 Order have remained mainly the same.  The Judge further made post relocation defined holiday and term access for the Father.

21.  It was directed in the Relocation Order amongst other things that the Mother was to obtain a mirror order from the Singapore Court with respect to the terms of the Relocation Order prior to A’s relocation and that a parental co-ordinator to be appointed by the parties and also a play therapist for A. In the Chronology submitted by Mother for this appeal, it appeared that Mother had made an application to the Singapore Court on 8 February 2021 for the mirror order (No FC/OSG 22/2021).  There was a case conference on 9 March 2021, which was attended by both Mother’s and Father’s respective Singapore lawyers. The hearing has now been adjourned to 25 May 2021, pending the determination of this appeal. 

22.  By now, the Mother and Mr N have not seen each other some 15 months.  At the time when leave was granted by this Court for the appeal to be brought, the Relocation Order was stayed.  Although the much delayed “travel bubble” between Hong Kong and Singapore was originally to start on 26 May 2021, this was suspended the day before the appeal.  Hence, the latest position is that it is in any event not feasible for A to be relocated on the terms as provided in the order of the Judge in respect of the generous staying access to the Father which predicated upon frequent travel between Singapore and Hong Kong as mentioned in paragraph 3 of the Judgment.

THE RECOMMENDATIONS IN THE SOCIAL INVESTIGATIONS REPORTS AND CHILD PSYCHOLOGICAL REPORTS

23.  Due to the parents’ dispute in relation to A’s care and control, and access, there was a social investigation report called for by the Judge and submitted on 23 November 2017 by Ms Tong Pui-chi (“Ms Tong”), social work officer of the Family and Child Protective Services Unit, (“1^st SWR”). In short, it was the recommendation of Ms Tong in her 1^st SWR that the parents to have joint custody of A, with care and control to Mother and reasonable access including staying access and holiday access to Father.

24.  The 1^st SWR was updated on 8 November 2019 (“2^nd SWR”), and further updated on 22 June 2020 (“3^rd SWR”), just under 3 weeks before the commencement of the trial.  As seen in the 2^nd SWR, at that time Mother had not revealed to Ms Tong her relationship with Mr N, nor her relocation plans and that Mother’s own views on care and control and access then were still based on A living and attending primary school in Hong Kong.  In the 2^nd SWR, Ms Tong maintained her recommendation that Mother be granted A’s care and control, with defined access to Father.

25.  The 3^rd SWR was called for by the Judge with particular reference to Mother’s Relocation Summons.  In her 3^rd SWR, Ms Tong again maintained her view that A’s sole care and control be granted to Mother with defined access to Father, but Mother’s relocation with A to Singapore was not recommended by Ms Tong.

26.  Apart from the SWRs, the Judge had appointed a single joint expert to prepare a child psychological report on A with respect to the short and medium term arrangements of A with particular reference to the advisability of shared care and appropriate arrangements for school holidays.  Dr Jadis Blurton of Family Development Center was first appointed and subsequently a child custody evaluation report was prepared by Dr Blurton and her team on 27 November 2017. Essentially, joint custody was recommended with care and control to Mother with frequent and generous contact with father.

27.  The single joint expert was changed to another registered child psychologist Ms Lora Lee (“Ms Lee”) sometime in September 2019, after the Father contacted Dr Blurton and her team privately for advice and potentially placed them in a position of conflict. 

28.  Ms Lee was then directed to provide a psychological report on A.  Ms Lee held her 1^st interview with the Mother on 18 October 2019 and a 2^nd interview with Mother on 6 November 2019 and during the 2^nd interview, Mother was asked by Ms Lee whether she had any plans to relocate, and Mother’s reply was that she had been thinking of looking at jobs in Asia, or anywhere she could get a good job, provided that it was good for A.  There was no revelation by Mother of her relationship with Mr N or any relocation plans to Singapore.  Father was similarly asked the same question by Ms Lee and Father’s response was for A’s sake, he had no plans to leave.

29.  Ms Lee submitted her 2^nd report on 3 July 2020.  This was a comprehensive report of some 68 pages.  Her opinion was that priority should be for Mother and Mr N to focus on their relationship and Mother re-establishing her career before removing A from Hong Kong and for this reason, she had suggested 2 options, essentially (1) Father also to relocate to Singapore; (2) Mr N to come to Hong Kong one week per month, and Mother to work and stay with Mr N two weeks per month in Singapore, and during her absence, Father to care for A and to undertake to take A to visit her maternal grandparents (mother’s parents) twice a week.

FATHER’S GROUNDS OF APPEAL

30.  There are 4 main grounds of appeal, and that briefly, the Judge erred in:

(1)   departing from the recommendations of the social welfare officer Ms Tong Pui-chi against relocation (“Ground (1)”);

(2)   failing to consider adequately the possible signs of parental alienation on the part of the Mother against the Father (“Ground (2)”);

(3)   departing from the recommendation of the Single Joint Expert in child psychology Ms Lora Lee that the priority should be for Mother and Mr N to focus on their relationship and her re-establishing her career before removing A from Hong Kong permanently (“Ground (3)”);

(4)   failing to address A’s welfare in a holistic way by conducting a balancing exercise by reference to each parent’s options and plans (“Ground (4)”).

GROUNDS (1), (3), AND (4)

The legal principles

31.  There was no dispute as to the applicable legal principles on relocation as summarized by the Judge in paragraphs 16 to 20 of the Judgment.  In fact, shortly after ZJ and XWN [2018] 2 HKLRD 644, Cheung JA again set out the legal principles in paragraphs 4.1 to 4.14 of his judgment in BA v BL (Child Relocation) [2019] 4 HKLRD 23, [2019] HKCA 822, CACV 18/2018.  In particular, paragraph 4.14 states as follows:  

“In Hong Kong the paramount consideration is whether the relocation is in the best interests of the child. Hence whether a relocation application is made by a primary carer or a non primary carer does not give rise to any presumption in favour of or against the applicant. There may be myriad reasons why such a parent applies for the relocation of the child. Ultimately it is one of the factors to be considered in the overall assessment whether the relocation is in the best interests of the child and the weight to be attached to this factor depends on the facts of the case. The value of Payne is that it ‘identifies a number of factors which will or may be relevant in a relocation case, explains their importance to the welfare of the child, and suggests helpful disciplines to ensure that the proper matters are considered in reaching a decision but it does not dictate the outcome of a case’ per Black LJ at [144] in K v K. In my view Payne is not to be jettisoned. The relevant factors provide a structured framework in which the appraisal is to be made holistically.”

32.  The Payne guidance can be summarised as (1) Is the applicant’s proposal genuine and realistic in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life?  (2) Is the respondent’s opposition motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive?  (3) What would be the impact on the applicant, either as the single parent or as a new spouse of a refusal of his/her realistic proposal?  (4) The outcome of the appraisals in (2) and (3) must be considered in the overriding review of the child’s welfare [or in Hong Kong the child’s best interests] as the paramount consideration.

33.  Although the Judge said that she would largely rely on the guidance provided by Payne, she had reiterated that the best interests of A would remain the court’s paramount concern.  She had also set out, as an aide memoire, the “welfare checklist” in the Children Proceedings (Parental responsibility) Bill and indicated that she had considered all of those factors.

The issues at the trial

34.  The Father was concerned that the Mother was “brainwashing” A and/or alienating A from him.  Further, as seen in paragraph 47 of the Judgment, the Father did not accept that the Mother’s plan was well researched and investigated.  In other words, he did not accept Mother’s plan was realistic.  In particular, the Father had (1) criticized the Mother for her more generic approach, that there were apartments available near to the school and school places available; (2) queried the Mother’s suggestion that the standard of living in Singapore would be similar to that in Hong Kong; (3) the Father was skeptical of the Mother’s visa proposals and generally questioned the sense of making an international move in the middle of a global pandemic.

The SWRs

35.  In paragraph 35 of the 3^rd SWR, Ms Tong believed that the Mother was committed to care for A and that her concern over the stability of care for A in the future was understood.  However, Ms Tong was of the view that it was possible that A would have to face the stress and adjustment difficulties in 3 aspects, namely of the (i) new environment, (ii) new living mode and (iii) new family relationship brought about by the relocation (“3 Aspects”).  Further, she had pointed out that if A were to live in Singapore, the contact between her and the Father would be significantly lessened.  Ms Tong has pointed out that it is important to note that access is in the interests of the child to foster continual parent-child bonding which is important to her development.   

36.  In paragraph 36, Ms Tong opined that the relocation would not be in the best interests of A, as relocation could have uncertain disruption in 4 areas, namely towards (i) A’s present stable routine arrangement (ii) parental care from both of her parents (iii)close bonding with the Father and (iv) close contacts with the extended family of both sides.

37.  The Judge gave two reasons for not following Ms Tong’s recommendation, namely (1) Ms Tong’s admission that the issue of finances “was not a concern” and that she had not really considered this when reaching her conclusion; and (2) Ms Tong was under the impression that Mother intended to move in with Mr N immediately and that understandably Ms Tong had some concerns about this given that A had never met Mr N face to face.

38.  Section 3(1)(a)(i) (B) of the Guardianship of Minors Ordinance, Cap 13 has set out that in any proceedings before any court in relation to a minor’s custody or upbringing, the court shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to any material information including any report of the Director of Social Welfare available to the court at the hearing.

39.  Father’s Counsel had referred the Court to 4 cases from the Court of Appeal in England.  The 1^st of these was W v W (A Minor: Custody Appeal) [1988] 2 FLR 505 in which it held amongst other things that although it was entirely within the judge’s discretion whether or not to accept the recommendation of the welfare officers, the judge, if he differed from it, should indicate in his judgment his reasons for doing so, and furthermore, when minded to depart from the welfare officers’ recommendation, the judge ought to consider all the information available and the recommendation should be carefully explored in cross-examination by the representatives of the parties[1].

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

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

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

43.  Although Mr Yim decided not to rely on one of his Hong Kong authorities 王訴韋 CACV 153/2012 as there was no English translation provided, this Court has pointed out to the parties that this is no reason for our discretion in referring to the legal principles set out in that judgment to be fettered bearing in mind that both Chinese and English judgments are part of the law in Hong Kong. 

44.  In王訴韋 CACV 153/2012, Kwan JA, as she then was, had referred to paragraphs 22 to 24 of WSM v FSY CACV 35/2004, 27.07.05 and reiterated that a social investigation report is not to be regarded as a kind of “special” material information, nor is a recommendation in a social investigation report a legal presumption which requires a rebuttal, and that in each case, the judge has to make an independent assessment after considering the facts of each case and to decide whether to accept part or all of the recommendation/s, or not to accept any part of the recommendation/s at all, and ultimately, the decision must be in the best interests of the child[2]. Kwan JA had further pointed out in her judgment that those UK decisions did not lay down any procedures or legal principles which were set in stone, or that any departure therefrom would then be considered an error in law, and that generally, if a judge had any reservation towards the recommendations in any report, it would be appropriate for the judge to raise this with the officer, so that the officer had a chance to consider and to respond, although she considered that it was not appropriate in the case before her to do so[3].

45.  In a more recent case YSYM v LHB [2020] HKCA 586.  CAMP 24/2020 & CACV 252/2020, 22.07.20, Kwan VP in paragraph 81 of her judgment had further pointed out that in a case where a social welfare officer had been following the case for years and was very familiar with the circumstances, the officer’s views and recommendation should be accorded due consideration and the court should be circumspect in departing from them without sufficient and cogent basis.

46.  Turning to the present case, for preparation of her 1^st SWR, Ms Tong first met A when she was about 2 years old and she visited her respective parent’s home in November 2017.  Ms Tong had also interviewed A’s maternal grandparents and paternal grandparents and she also had collateral contacts with A’s teachers.  For the preparation of her 2^nd SWR, Ms Tong conducted respective home visits in October 2019.  A was then 4 years old and A was seen individually during the home visits.  Again, collateral contacts were made with A’s teachers.  For the 3^rd SWR, Ms Tong had conducted individual interviews with A, Father, and Mother and also home visits. She had also interviewed Mr N through Google Meet, and again she had collateral contact with A’s class teacher.

47.  By the time of the 3^rd SWR, Ms Tong had been following A’s case for over 2 years and 7 months.  Although Ms Tong was not involved in the case to the extent of the social welfare officer was in the case of YSYM, she was familiar with the present case and her report on the proposed relocation was her 3^rd one.

48.  Ms Tong was aware of the parties’ financial position. In paragraph 3 of the 3^rd SWR, she had reported that the Father had ceased paying the Mother and A the monthly interim maintenance of HKD 52,500 since January 2020 but he had paid for A’s education and insurance fees, and Mother’s credit card bills, and that Father had applied for variation of maintenance. Ms Tong also reported in paragraph 4 of the SWR that Mother was stressful to handle the family finances and that she had to rely on her savings for settling legal costs and family expenses.  Ms Tong had also reported that Mr N had offered Mother a job in his company in October 2019.

49.  By June 2020, A was 4 years and 8 months when she was seen individually by Ms Tong. Ms Tong reported that given her tender age, A was not mature enough to give her view on relocation and all she said during her 1^st interview by Ms Tong was that she liked both her parents, and during the 2^nd interview, she shared that she liked both parents and wanted to see them more.  She had also said she liked sleeping at “Daddy’s home”.  During the home visit at Mother’s home, A had told Ms Tong that “I go to Singapore” and when Ms Tong asked how she would see her father, A said “he goes to Singapore, I miss him”[4].

50.  It is clear that A has a close relationship with both her parents.

51.  Ms Tong was asked by Mother as to whether she was aware that Father had ceased to pay her interim maintenance and whether Ms Tong had taken this into her consideration when making her recommendation.  Ms Tong had responded that was “not a direct concern” and when Mother asked her why, Ms Tong had explained that she was of the view that the interests of the child was of paramount consideration and that it was for the overall situation[5]. When further asked whether the interests would include accommodation and education of the child, Ms Tong said yes and that she had listed out her concerns in paragraph 35 of her report[6].

52.  Ms Tong accepted that the financial implications of both parties played a part in the stable living of A.  Ms Tong had confirmed she was aware that Mother had invested in the business in Singapore for her future prospect. Later in her cross examination, Mother had said to Ms Tong that on one hand Father was not paying her maintenance and yet on the other hand, Father said she should not go to Singapore to start earning money purely because he did not believe that she could, and Mother asked Ms Tong whether she had asked Father what Mother should then do.  Ms Tong’s response was that Father had explained to her that he was applying for a variation of the maintenance payments and that his then financial difficulties would be resolved in due course.

53.  Ms Tong was also cross examined by the Mother in relation to the 3 Aspects that A would face stress and adjustment difficulties.  Ms Tong had explained that in relation to the “new living mode”, that for example, if Mother were to move to Singapore, she would start working, but at that time, in Hong Kong, she was not working, and that the “living environment” would also affect the living mode.  Mother then put to Ms Tong that whether she was in Hong Kong or Singapore, she would be returning to work once A started to attend full time school but in Singapore, she would have an opportunity to be able to work around A’s schedule, to which Ms Tong said she was aware of that as Mother had mentioned it to her.  Ms Tong then explained that it could be the case that if Mother were to remain in Hong Kong she would still work, but Ms Tong had explained her emphasis was after all Hong Kong and Singapore were two different places[7].

54.  When asked by the Mother if the Father was not able to pay her maintenance and her savings had depleted, whether it would be in A’s paramount interests for Mother to start working, Ms Tong said this might be one of the ways for improvement of both parties’ financial situation but she did not know whether the Father had other options in hand and that they both needed to communicate[8].

55.  Although Ms Tong did not have the exact amount of Father’s then outstanding maintenance payments to the Mother, nor was she provided with the judgment on Father’s downward variation application, Ms Tong’s answers to Mother’s cross examination indicated that Ms Tong was aware that Father had not kept up with his maintenance payments and that Mother had to pay for A’s school debenture first and that Mother had invested into Mr N’s company in Singapore. Further, as said earlier, the evidence of Ms Tong was only that finance was not a direct concern, and her follow up explanation indicated that A’s interests were of paramount consideration and that the overall situation had to be considered.  Ms Tong did not say finance was not a concern, as the Judge had said in the Judgment.  The Judge appeared to have misunderstood what was said by Ms Tong.

56.  The Judge was clearly of the view that the financial aspects of the relocation application were very important, if not pivotal, as said by the Judge in paragraph 35 of the Judgment.  However, albeit important, this is only one of the factors to be taken into account in considering A’s best interests.

57.  Moreover, the financial aspects cannot be said to be in Mother’s favour.  Her evidence at the trial was that notwithstanding having paid USD 150,000 to N for 20% equity in Mr N’s recruitment business, it would take some 2 years to establish herself at work and to generate any income.  When Mother was asked by this Court in relation to the progress of her investment, Mother said there was not much progress and that she did not have any information on the business as books only closed at end of March.  Mother further said that Mr N had not got the information and was not sure whether there was any plus side.  No financial statements of Mr N’s company, or any independent valuation thereof, were produced.  There is no updated information on what monthly advance Mr N can make available to Mother against future earnings or against Mother’s future dividends as a shareholder as stated by Mr N in item 4 of his email of 11 July 2020.  In any event, in item 4, Mr N went on to say he and Mother could decide on the right option only after discussing with the accountants at that point and in keeping with prevailing global and local business sentiments.

58.  Mr N’s assertion at the trial was that for 2019 the gross turnover was USD 750,000 and that the net profit was about 30%[9], ie USD 225,000 and that was pretty low compared to usual times, and that there were 5 staff.  USD 225,000 would be about HKD 1,755,000 for the year and 20% (being Mother’s share) would be about HKD 351,000 or about HKD29,250 per month.  This was however before the Covid 19 pandemic.  As there has been no updated financial information on Mr N’s business, this has added to further uncertainty in terms of Mother’s finances upon her relocation, in particular when Mother’s own evidence in her 11^th affirmation was that her anticipated rental costs in Singapore would be HKD 28,000 per month and her household expenses would be the same in Hong Kong[10].

59.  Mother’s evidence in her 11^th affirmation was that either Mr N could apply for her and A as his dependants for a Long Term Visit Pass (“LTVP”), or A could apply for the a Student Visa/Student Pass (“STP”) with Mr N acting as her guarantor and that Mother will then apply for the LTVP as A’s mother[11]. During the trial, according to Mr N, Mother’s plan was to obtain a STP for A and Mother to obtain a dependant visa for herself on that basis[12]. At the appeal, Mother has confirmed to this Court that she will not be able to apply for a work visa until she has been in Singapore for one year and that to enter and remain in Singapore upon relocation, she will need to apply for LTVP as mother to A, assuming A has no problem in obtaining a STP.  The implications are: first, Mother would not be able to work for over a year; and second, as A’s visa will depend on Mr N being a guarantor, this will very much depend on Mother’s relationship with Mr N.

60.  Mr N had said in his affirmation he would provide the right support and infrastructure for Mother and A to have a wonderful life[13]. When cross examined by the Father over what he meant by support and infrastructure, Mr N had replied: to find a paediatrician for A, or to find transport, a helper, groceries, internet, phone, consumables, purchase, social network.  There was no mention nor any evidence that Mr N would help Mother financially upon her arrival in Singapore with A.  In other words, there is again no certainty about Mother’s finances until such time she is able to obtain a work visa/work permit.

61.  In fact, Mother’s case was that she would continue to have to rely on maintenance from Father.  She had said the initial flights to Singapore for her and A would be paid from Father’s maintenance payments.  She had said that she did not anticipate to earn for the first 2 years until the build up of her business.  Further, the relocation, if allowed, is likely to result in more travelling expenses by the parties and A and this will be an additional strain on the parties’ finances.

62.  Although the Judge accepted that there were no guarantees in life, she then found that buying into an established business and one in which Mother had worked in before was a sensible move.  With respect, the Judge did not appear to have considered that whether Mother and Mr N would be able to work together in the company and whether Mother and A would be able to continue to remain in Singapore would very much also depend on the relationship between Mother and Mr N.  Further, as seen earlier, due to the lack of updated information for almost a year now, there is no certainty that Mr N’s business will be profitable after 2 years and/or that Mother’s finances will improve after 2 years.  

63.  As opined by Ms Tong, the relocation could have uncertain disruption.

64.  We do not see from the transcript that Ms Tong had admitted that she had not really considered the issue of finances.  Even if she had not considered this issue, with respect to the Judge, in relation to her reason (1) for departing from Ms Tong’s views and recommendation, the failure of giving consideration to the issue of finances does not necessarily mean Ms Tong’s concerns of possibility of A’s stress and adjustment difficulties due to uncertain disruption to her stable routine should then be sidelined. 

65.  As for reason (2), as said by the Judge, Mother “shifted from her original position”[14]. In fact, in Mother’s 10^th affirmation, Mother’s then evidence was that she did not intend to cohabit with Mr N and that she would arrange her own residence[15]. In Mr N’s affirmation[16], all he said was he had discussed with Mother the possibility of living together upon her relocation to Singapore.  Then in Mother’s open proposals in her opening submissions for the trial, Mother changed her position and proposed that she and A to reside with Mr N in Singapore in an apartment close to A’s school[17]. During the trial, her position seemed to change again.

66.  When Mother was cross examining Ms Tong over the 3 Aspects, the question asked by Mother was “But what if I moved to Singapore and [A] and I lived separately from my partner until such time [A] became comfortable with him”, the Judge had asked Mother to clarify whether that was her proposal.  Mother’s response was “That was a possible….” and that she had discussed with Ms Tong during their meeting and that was something she had discussed with Ms Lee[18]. Thus, it would appear to be only an option for the Mother and there was no sufficient evidence that she had made up her mind.

67.  Ms Tong’s response to Mother’s above question was:

“But according to what [Mother] told me at that time, her intention was to move to Singapore with [A] and then to live with her boyfriend in Singapore. So she also mentioned that she might – it might be a possibility that she and [A] lived separately from the boyfriend. [Mother] mentioned such options to me at different times of my investigation. And the last message or last time I received such information from [Mother] was that she would find a home – they would look for a bigger size flat so that all of them can live under that roof...”[19]

68.  Ms Tong had further said during the trial that if Mother was then saying for sure about living separately from Mr N, Ms Tong would need to reconsider the situation and that she also needed to ask Mr N whether he would be agreeable to this, and that also she would need to make enquiries as to the reason why Mother decided on that option at the trial.  

69.  Ms Tong’s answers indicated that she was not prepared to accept what Mother said at face value and she need to make further enquiries.  Further, when Ms Tong was asked by Mother towards the end of Mother’s cross examination whether she would reconsider her recommendation, Ms Tong had said she would need further investigation and understanding about the situation and she had also had questions about the financial situations and conditions of both parties.  

70.  What is clear is that this latest shifting of position on the part of Mother would seem to have been made by Mother at the last minute only upon reading the latest reports from Ms Tong and Ms Lee.  Although Mr N’s evidence during the trial was that he would support Mother’s decision, ultimately, there was no safeguard in the Relocation Order or any undertaking from the Mother that this would indeed be the arrangement, nor was there any safeguard as to what alternative there would be if the arrangement did not work out, or if Mother changed her position again.

71.  Under section 3(1)(a)(i)(B) of the GMO, the Judge had to give due consideration to not merely the recommendation, but also all material information contained in the report including the reasons/concerns which led Ms Tong to making her recommendation.  Having considered the SWRs and all the evidence, in our view, the Judge did not appear to have given due consideration to all Ms Tong’s reasons/concerns in her 3^rd Report, or if the Judge had, the Judge ought to have given fuller explanations and reasons as to why she had taken a different view and departed from Ms Tong’s recommendation. 

The child psychological reports

72.  Apart from Ms Tong, Ms Lee, as the single joint expert was also an independent witness and she provided her reports to the Judge reports to assist the Judge.  She had made a declaration of her duty to the Court and agreed to be bound by the Code of Conduct of Expert Witness Appendix E.

73.  The Judge had set out Ms Lee’s recommendations in paragraphs 306 to 315 of her report, and the Judge had said her difficulty with Ms Lee’s recommendations was that the recommendations were “entirely therapeutic response to the issues that were currently before the court” and those were not recommendations that the court could easily order unless by agreement between the parties.  The Judge then concluded that it was not possible for her to attach very much weight to those recommendations of Ms Lee’s save for the suggestion that A should have some form of psychological support in the short term.

74.  The Judge had put her concerns to Ms Lee, which was accepted by Ms Lee.  The Judge then went on to say that the Father indicated his agreement to Ms Lee’s 2^nd proposal, but Mother and Mr N both said that it would be impossible for them to put that proposal into effect, and the Judge accepted what they said, and found in the circumstances, it was not really possible for her to attach very much weight to Ms Lee’s recommendations save for the suggestion that A should have some form of psychological support in the short term.

75.  The Judge had explained to Ms Lee that it was not possible to make those orders along her recommendations unless the parties and Mr N agreed.  Ms Lee accepted that.  When the Judge asked Ms Lee whether there were any other suggestions that she had to make, Ms Lee said no.  However, Ms Lee had gone on to say that the reason she came up with all the different proposals was that she did think A should stay [in Hong Kong] unless Father could go to Singapore to support her and the Mother to develop the relationship [with Mr N][20]. This was in fact the primary recommendation in Ms Lee’s report[21] before she then went on to set out her two proposals.

76.  We accept the evidence shows that neither of the proposals made by Ms Lee was acceptable to the parties.  However, the Judge did not appear to have sufficiently, if at all, considered Ms Lee’s primary recommendation that priority should be for Mother and Mr N to focus on their relationship and her re-establishing her career before removing A from Hong Kong.  As pointed out by the Court to the parties during the appeal, paragraph 306 of Ms Lee’s updated report highlighted her thinking that the relocation could be sometime in future after Mother had re-established her career, and in response, Father’s counsel Mr Yim accepted that Ms Lee was not entirely against relocation and that she was only of the view that it was premature.   

77.  Apart from saying it was not possible for her to make orders along the two proposals without agreement from the parties, the Judge then decided not to attach very much weight to Ms Lee’s report.  This was the only reason given by the Judge from departing from the primary recommendation of Ms Lee.  In departing from Ms Lee’s recommendation, the Judge did not seem to have considered or given due consideration to the information in the report and to the concerns of the single joint expert appointed by the Court.

Other factors  

78.  As pointed out by counsel on behalf of Father, Mother is not returning to her homeland.  Both parents, although of Indian descent, were born and brought up in Hong Kong.  Although Father’s family moved to Bangkok when Father was a teenager, Mother completed her education in Hong Kong.  Mother had moved to Italy for a few months with her 1st husband, but later returned to Hong Kong and had been in Hong Kong since.

79.  A’s home has always been in Hong Kong.  As seen in both the SWRs and Ms Lee’s reports, A has had close contact with extended family of both her parents in Hong Kong.  As set out in paragraph 1.3 of Mother’s Form J, the persons involved in caring for A in Hong Kong, apart from the parties and domestic helpers, are Mother’s sister and mother.  

80.  Although Mother had said that her family members in Hong Kong are likely to move to Singapore and that her sister, A’s aunt, had also confirmed during the trial that she was looking into work opportunities in Singapore, the Judge found these scenarios were largely unknown.  In any event, the extended members of Father’s family in Hong Kong with whom A has close contact are in Hong Kong. Whether the parties have other extended family members in Singapore is not relevant at this stage, since there is no evidence that they have been A’s carers or that A has been in close contact with those family members. So far, Mother’s support network has been in Hong Kong.

81.  In paragraph 62 of the Judgment, the Judge accepted Mother’s submissions that she was in a stable and loving relationship with Mr N, whom she had known for over a decade, and that if Mother’s application for relocation were denied, it would put a strain on their relationship.  The fact is that Mother and Mr N had been out of contact for some 8 years, they had not lived together before and they had previously broken off their romantic relationship after about 3 years and thereafter Mother ceased working for Mr N.  More importantly, A had never met Mr N in person, and as reported by Ms Lee, A was not as close to Mr N as described by the Mother.  A has also not met Mr N’s other children in person. 

82.  At the time of the Relocation Order, A had just started attending her present school in Hong Kong.  According to the Chronology produced by Mother, she paid the application fee for A to attend an international school in Singapore on 3 December 2020.

83.  There was very little information provided by Mother on housing apart from anticipated rental of HKD 28,000 per month and that the accommodation would be near A’s school.  Notwithstanding the Judge had said it might have been helpful for more information to be provided in respect of housing, she nevertheless accepted that there would be apartments available for Mother to rent near to the school in the short term and that the Judge found that it was not possible for Mother to be any more specific in that regard.  With respect, we do not agree.  It should be possible for Mother to at least conduct some preliminary research on the internet and produce some concrete information.  It is also not quite clear as to whether Mother would be able to rent an apartment without having first obtained a work visa.  There was also no information on the type of accommodation (furnished or unfurnished) and/or facilities available Mother had in mind or how the rental deposit would be met by Mother.  It is also not quite clear whether it was Mother’s plan to rent the apartment, whether online or otherwise, before arriving with A in Singapore, or that they would move into a hotel first before looking for an apartment. 

84.  The decree absolute in this case has not been granted as the question of ancillary relief has not been determined and if there is to be a trial date, when that will be.  Mother is not free to marry Mr N at the moment.  If the relationship/business partnership between Mother and Mr N does not work out, there will not be a guarantor for A’s STP and further Mother will not have an employer to support an application for a work visa/pass. 

85.  Although in paragraph 25 of the Judgment, the Judge had said she had considered all of the Welfare Checklist factors, we are concerned that there are no safeguards or protective measures for A in the Relocation Order, in the event if Mother’s plan does not work out.

86.  Even though the Judge had said the issue of finances was pivotal, the Judge had also said the issue would need to be investigated more fully in the ancillary relief proceedings.  If the parties are not able to settle during the FDR, the trial will be some time away, and if allowed to relocate at this stage, Mother may then have to fly back to Hong Kong to attend the trial.

87.  The Relocation Order is stated to take effect from the “uplifting of the travel ban” between Hong Kong and Singapore.  However as pointed out by Mr Yim, in paragraph 3 of the Judgment, what was anticipated by the Judge was “either the Hong Kong red outbound travel alert has been uplifted and/or a travel corridor has been established with Singapore, which will allow the parties and A to travel frequently between the two jurisdictions”.  It is not clear what the Judge had in mind since even if the proposed “Travel Bubble” were to go ahead, it does not mean that Father would be able to fly to Singapore the first weekend every month pursuant to the Relocation Order, as under the present proposed “travel bubble” arrangements, there are still quarantine requirements albeit for a shortened period.  There is also no information as to whether A can travel frequently between the two jurisdictions without being vaccinated under the “Travel Bubble” arrangement.  In short, there are uncertainties as to whether and/or when the parties and A can travel frequently between the two jurisdictions as anticipated by the Judge.  

88.  Having considered all the evidence, in our view, by failing to include safeguards and protective measures in the Relocation Order, the Judge had failed to address A’s welfare and best interests sufficiently in a holistic way.  

Conclusion on Grounds 1 , 3 and 4 

89.  In light of the above, we have come to the view that the Judge had plainly erred in the exercise of her discretion.  The Mother’s application for relocation was rushed and pre-mature and made during a period with the pandemic having no end in sight and normal frequent travel was not possible, and her application for relocation should not have been allowed at that stage.  It has now been almost a year since the trial, and very likely there have been further changes in circumstances with A having started and settled in her present school for some 6 months.  Even though schooling had been by remote, we understand that from 24 May 2021, in person schooling is to resume in Hong Kong. 

90.  All in all, we do not find Mother’s application to be realistic, or founded on well researched and investigated practical proposals.  We do not see it is in the best interests of A for her to be simply uplifted now from her present circumstances without further investigation into her welfare and best interests and without safeguards and protective measures in place.  

91.  We will thus allow Father’s appeal on Grounds 1, 3 and 4.

GROUND 2

92.  As indicated by Mr Yim at the trial, he would not pursue Ground 2(I) and (iii).  This is a sensible approach.  As pointed out by Mr Yim, although Dr Blurton had concerns on parental alienation, her report was made on 27 November 2017, some 3 ½ years ago.  In any event, Dr Blurton was not called to give evidence at the trial, and she had been replaced by Ms Lee as the SJE and Dr Blurton’s report has been overtaken by events.

93.  As regards the remaining Ground 2(II), Father’s complaint was the Judge failed to consider adequately or at all the impact that the Mother’s possible alienating conduct will have on A once A is a further step removed from Father and her other attachment figures.

94.  It was the Father’s allegation at the trial that there was parental alienation or brainwashing on the part of the Mother.

95.  The only “alienating behavior” which Ms Lee had referred in paragraph 305 of her updated report was that Mother by asking A to say what Mother wanted her to say might be seen as “brainwashing” A.

96.  In paragraph 8 of the Judgment, the Judge noted that A appeared to have a warm and loving relationship with both her parents and this was not a case of a child exhibiting any signs of having been alienated, and she noted that the Father was fearful that his relationship with A would become fractured if A were allowed to relocate.  The Judge found in paragraph 40 that the Father’s concerns had not manifested into a bigger issue and there was nothing to currently suggest that there was any difficulty with respect to A’s relationship with her father.  The Judge had considered the affidavit evidence filed by a former domestic helper who was not able to attend the trial to give evidence, and although there were many accusations against the Mother, the Judge found that the Father was not able to come up to proof with respect to those allegations, and that the Judge attached no weight to that affidavit. 

97.  Ultimately, in paragraph 46 of the Judgment, the Judge’s finding was that although Dr Blurton’s report referred to some concerns, as did Ms Lee’s report, the fact remained that there was nothing to suggest in A’s behavior that A was in any way alienated from the Father and the fact that the Father feared this was not the same thing.   

98.  It was thus the Judge’s clear finding that there was no parental alienation or any alienating conduct and we do not see any basis for interfering with her finding in this regard.  There is no merit in Ground 2(II).

ORDERS 

99.  We allow the Father’s appeal and paragraph 1 of the Relocation Summons is dismissed.  We set aside the Relocation Order save for the Intervening Order.  Having made these orders, we wish to make it clear that Mother is not debarred from making any new application for relocation in future when she is able to provide realistic and practical proposals well researched and investigated, including but not limited to her business investment and/or finances and proposed housing, and when A has had a chance to meet Mr N and his children and has established a comfortable relationship with them.  But it is wrong in principle for her to proceed with an immature and uncertain relocation option involving the child simply because she needs to procure her immigration status through the child’s student visa as a springboard.   

100.  As there was no decision by the Judge on A’s care and control in the event of there being no relocation, we direct that the C&C Summons be refixed before the Judge for determination on this issue. 

101.  We understand that the Judge has not yet dealt with the costs argument in relation to the Relocation Summons and the C&C Summons.  In so far as Father’s leave application and the appeal are concerned, having considered the circumstances in this case, and that in line with the usual approach in children cases, we make no order as to costs.