H v. W

FCJA 350 / 2021

[2025] HKFC 203

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

JOINT APPLICATION

NUMBER 350 OF 2021

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JUDGMENT

( Removal for holidays from time to time )

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(This judgment is delivered extempore to the parties orally in English with interpretation service provided by a court interpreter)

The application & the parties’ proposals  

1.  Before me is the application of the 1^st applicant (“father”) for uplifting the removal restriction imposed by this court on the children of the family, namely 2 sons now aged 15 and 13 respectively.

2.  The 2^nd applicant (“mother”) agrees that the sons can be removed out of this jurisdiction freely from time to time for any overseas trips organised by the sons’ respective schools, without any pre-conditions.

3.  However, the parties cannot agree on the removal of the sons by either party for holidays, in particularly the removal by the father.

4.  The mother insists and proposes that:

(1)     for day return trip to the Greater Bay Area during summer holiday, the father only needs to inform her of the trip 48 hours before departure;

(2)     for any other trips of 24 hours or longer during school days or school holidays, the father shall seek her prior approval, as well as provide trip proposal and details to her 60 days (if the trip lasts 3 days or more) or 30 days (if the trip lasts 2 days or less) prior to the trip;

(3)     the sons should not be removed out of Hong Kong for holidays during any school days, examination days including one week before their respective examinations.

5.  The father concedes that some conditions should be imposed on the sons’ removal, but not to the extent of requiring the mother’s prior approval. His proposal is the sons should be allowed to travel freely out of Hong Kong for holidays with him on the following conditions/undertakings:

(1)     that he would give prior notice and travel particulars (including travel dates, destination, transport method, accommodation and travel insurance) to the mother either 2 months (if the trip is 3 days or more), or one week (if the trip is 2 days or less), or 48 hours (if it is a same day return trip to the Greater Bay Area) prior to departure;

(2)     that he will send photos of the sons to the mother daily during the trip;

(3)     that the trips would not take place during school days (not counting Saturdays and Sundays), and that for travel during school long holidays, he shall return the sons back to Hong Kong at least 2 days before their schools begin.

Background

6.  The parties are no strangers to family litigation concerning the sons.

7.  On 3 January 2024, this court handed down a judgment in Chinese on the custody of the sons (“Custody Judgment”). The caring history, the dispute between the parties and the relationship between the mother and the sons are already set out at [1] to [24] of the Custody Judgment. For the purpose of this judgment, I only need to point out the following salient background.

8.  The parties started dating while they were studying in the university. They were married in 2007.  Their marriage ended in 2024 with the grant of decree absolute.

9.  Since the birth of the sons, dispute and divergence appeared as the parties have exhibited different parenting styles. The dispute became acute when the father returned from several years of overseas work back to live in Hong Kong in 2017.

10.  As revealed by various social investigation reports and clinical psychological reports obtained by the court in the children’s proceedings, the father values more on the sons’ happy learning opportunities and exposure to different experiences, rather than classroom learning. The mother, on the other hand, stresses more on a clear reward-and-consequence system, and prefers a more disciplined and structured learning.

11.  During the divorce proceedings, despite interim sharing arrangement was made, the sons, especially the younger son, had repeatedly left the mother’s home, and went to and stayed at the father’s home, in particularly around examination time in order to avoid doing homework and/or revision with the mother.

12.  After a 5-days’ trial, I handed down the Custody Judgment, granting the custody of the sons to the parties jointly. The parties have shared care and control of the sons to be implemented in a progressive manner. I imposed a non-removal restriction on the sons. With their consent, I also referred the parties and the sons to receive psychological treatment/therapy, with the hope that the mother-and-sons’ relationship can be rebuilt, and that the father can learn setting some reasonable and necessary boundaries for the sons. The parties also agreed to receive co-parenting service of the contact centre, in order to work out a better alignment of their different parenting styles.

13.  Despite the good intention of the court, there is not much meaningful improvement of the parties’ divergence, nor the relationship between the mother and the sons, since the Custody Judgment.  The younger son still refuses to stay with the mother according to the sharing time table set by the court. The elder son, after staying with the mother for some time, has gone to live with the father for good.

14.  According to the progress report dated 2 December 2025, the sons are now living with the father who has given appropriate care to them with the help of his elder sister. The sons continue to reject seeing the mother, or going to live with her.

15.  This prompts the court to suggest to the parties to deal with the progress report and its recommendation of how to re-connect the sons with the mother, to which they agreed. With the facilitation of the court, the parties were able to reach an agreement in the hearing of 9 December 2025, and an order was made to the effect that:

(1)     the father will be granted care and control of the sons;

(2)     the mother shall have a video call to the sons once a month, which shall take place during the first two weeks of the month. Further, with the facilitation provided by the co-parenting service, such monthly access may be adjusted to be a meal or other activities among the mother and the sons.

Discussion

16.  It is trite to say that in any application concerning children, there is only one guiding principle, namely the best interest of the children.

17.  In summary, the mother’s main objections to the father’s removal application boil down to the following:

(1)     the father prompted the sons to leave the mother, and refused to comply with the share-care order made in the Custody Judgment;

(2)     the father bad-mouthed the mother in front of the sons, and lied to the sons that she objected to any removal plans of the sons, but the fact is that she agreed to at least the Shanxi trip and the Singapore trip;

(3)     the father failed to inform and discuss with the mother of his removal plan, but asked the elder son to seek her consent directly, thereby creating pressure on her to agree;

(4)     the father has wide connections with his relatives all over the world. There is possibility that he will not return the sons back to Hong Kong, or send the sons to study overseas without her consent or knowledge;

(5)     the father arranged the sons to leave Hong Kong for Yunan during a school day shortly before the commencement of the Easter Holiday. And right after the trip to Yunan, the father let the younger son be absent from school for one day, merely because the younger son was too tired to go to school. The mother says that she has the duty to protect the sons’ well-being, health and timely attendance to schools.

18.  I shall deal with the above major objections under the following headings.

Non-compliance with the shared care order

19.  The sons are one of those stakeholders of the shared care order.  It cannot be disputed that since the Custody Judgment, they have grown up and are now in their adolescence. It is understandable that they would prefer more freedom and the parents’ respect to their preferences.

20.  The mother’s over-stressing on discipline, structure and learning tend to give the sons an impression that the mother cares more of their educational marks rather than their preferences. Despite the comments of Mr Chan, the clinical psychological expert in the custody trial, and the therapies given by the government clinical psychologist to the mother since the Custody Judgment, it is sad to learn that the mother continues to place her emphasis on academic marks and school attendance rate of the sons, rather than on trying to understand their preferences, and/or on how to reconnect with them. An obvious example relates to the Yunan trip. The father sent photos of the sons during the trip to the mother daily. However, she showed no response and did not take this golden opportunity to try to reconnect with the sons.

21.  On the other hand, from the observations of the social investigation officer while preparing for the progress report, the father has shown some improvement on setting appropriate boundaries to the sons’ behaviour, albeit their school performances still need improvement.

22.  The evidence is clear that the sons are acceptable to the father’s disciplining them.

23.  In such circumstances, the court is not surprised to learn that the sons have refused to stay with the mother but preferred to live with the father. Hence, I do not regard the father has breached the shared care order in the overall circumstances of the case.

Bad-mouthing the mother

24.  The father’s application to remove the sons to Shanxi was not heard nor decided by me, but by a Family Court Master. As such, this court is not in a position to say what actually did happen or say in that application, and when and under what circumstances the mother finally gave her consent to the sons’ removal to Shanxi. In any event, this is already a “past” incident. It is more appropriate not to place any weight on this single incident.

25.  Further, what remains true is that the mother has indicated clearly that way forward, her consent is strictly necessary for any removal by the father (except same day return trips to the Greater Bay Area during summer holiday); she is not willing to let the sons be removed out of Hong Kong for holidays on certain pre-conditions or undertakings from the father being met, or complied with.

26.  Given such a stance of the mother and the current mother-and-sons’ relationship, it is not moonshining that the sons would themselves take this stance of the mother as an outright refusal to any removal plan of them, and thus become unhappy with the mother.

Using the elder son as the mouthpiece

27.  On this point, the mother refers to the intended trip of the sons to Taiwan with the father. She complains that the father did not discuss the removal plan with her directly. Instead, he asked the elder son to give her a travel plan (of the places that the elder son wished to visit) and ask for her consent. This is viewed by the mother as the father’s exerting pressure on her to agree with the removal plan through the elder son. If she disagreed, she would be viewed as the “bad guy” by the sons. Therefore, on that occasion, she asked the elder son to tell the father to talk to her directly. However, the father did not contact her directly thereafter.

28.  In the trial, the father explains that it was the elder son who proposed to visit Taiwan, and that it was the elder son’s own initiative to prepare a travel plan in order to persuade the mother to agree to the trip. The father views this as a good opportunity for the elder son to contact and connect with the mother, to which she should feel grateful. Yet, she rejected the plan, which caused disappointment and grievances of the sons.

29.  Further, the father retorts that the elder son never told him that the mother wanted the father to talk about the trip directly with her. He rhetorically asked the mother this: if she is of the view that the parents should not use the sons as the mouthpiece, why she had not told the father directly that she wanted to discuss with him of the travel plan, but had asked the elder son to tell the father to talk to her?

30.  I have to say that the mother has applied a double standard here. In any event, I am not convinced by this ground of objection.

Abduction by the father

31.  In this trial, the father has not expressly objected that he has relatives living overseas, or that he used to have abundant overseas working experiences. However, he adamantly says that he has no intention to leave Hong Kong, which is his home base. He also says that he is aware that should he wish to permanently remove the sons out of Hong Kong, he needs to make a formal application to the court.

32.  I have no reasons to doubt the above evidence of the father, after considering all the evidence and the social investigation reports of 27 May 2025 and 2 December 2025.

Effect on school attendance

33.  The father previously made an application to take the sons to Yunan on 17 April 2025 to visit the tea farm and learn about the tea culture.

34.  The mother objected to this Yunan trip because the flight took place on 17 April 2025, which was the last school day immediately before the commencement of the Easter holiday. The activity that was arranged by the school for 17 April 2025 was the sharing and presentation of the school trip to Singapore which the younger son had joined[1]. Besides, the mother is of the view that the younger son had just returned to Hong Kong from Singapore on 16 April 2025, and it would be too tiring for him to travel again on 17 April 2025.[2]

35.  As a result, the father had to change the flight to another day, in order to persuade the Family Court Master to approve the removal application.

36.  What actually happened were these. The school(s) of the son(s) was/were supposed to end at 12 noon of 17 April 2025. The father had arranged a flight from Hong Kong to Yunan to take off at 5 pm.  In his estimation and view, there was a time buffer of 5 hours, which would be sufficient for the sons to return home from schools, and then bring the luggage from home (in Tuen Mun) to the airport.

37.  Notably, the driving distance between the father’s Tuen Mun home to the airport is about 30 minutes. Even if the father and the sons were to keep this 5 pm flight, they still had ample time to make their way to the airport after schools ended. Further, it is the mother’s mere guess that the father would arrange the sons to be absent from school on 17 April 2025 in order to take this 5 pm flight.

38.  On the other hand, the father accepts that the younger son did not go to school on the first school day after the Easter holiday ended. But he explains that due to the mother’s objection of taking the flight on 17 April 2025, he had to re-schedule all flights again with a lot of difficulties because it was the peak season of Easter holiday. In the result, he and the sons could only return to Hong Kong on the last day of the Easter holiday.

39.  Importantly, the father agrees that in the future, he would return the sons to Hong Kong at least 2 days earlier before schools start, in order to give them sufficient time to rest.

40.  Upon due consideration, I accept the father’s explanation. I also deem his proposal of earlier returning of the sons to Hong Kong appropriate.

Wishes of the sons

41.  The social investigation officer has interviewed the sons on their wishes to leave Hong Kong for holidays from time to time.

42.  The older son says that he had very good trips to Shanxi and Yunan. He showed the videos of the trips to the social investigation officer and gave clear and logical explanations of the trips. He tells that he wants very much to go to visit China and other overseas places to broaden his horizon.

43.  The younger son tells the social investigation officer that he wants to go to Shenzhen to eat and play, like what his friends and a normal person can do.

44.  In my view, the sons are old enough to express their wishes which should be respected by the court.

Social investigation report

45.  The social investigation report dated 27 May 2025 was prepared to give the recommendation on the removal application of the father. Neither party has requested the officer to give evidence in this trial.

46.  The social investigation officer observed that the younger son had positive performance after he was given the opportunity to go to a school trip to Singapore.

47.  The officer also described that the sons have great curiosity to see the world and different cultures:

“兒子們對於接觸世界不同的事物抱有極大的好奇心，小至一天深圳遊，大至出國見識其他文化，都是他們心中所想。”

48.  Therefore, it is the recommendation of the social investigation officer that:

(1)     the sons may be removed out of Hong Kong to participate school trips organised by the school(s);

(2)     for other trips, the parties shall notify each other of the removal details, such as dates, destination, transport mode, accommodation particulars, before departure (for trips of 3 days or more, 2 months before departure; for trips of 2 days or less, one week before departure).  However, such trips shall not affect the school attendance of the sons.

49.  After careful consideration, I find no reason to reject the content and recommendations of the social investigation officer, subject to some fine-tuning arrangements either proposed by the respective parties in this trial, or upon this court’s own motion after considering the best interest of the sons.

Conclusion & Order

50.  For all the matters set out above, I conclude that it is in the best interest of the sons that they shall be allowed to be removed by their respective schools for overseas school trips, or by either party for holidays in the details set out below.

51.  In making the orders below, I also bear in mind that certain arrangements and/or undertakings suggested by the father may logistically mean that the sons (and the party travelling with the sons) may have to be questioned by the immigration officer(s) at the checkpoint(s) to see if the conditions set out in this order have been duly complied with or met. Therefore, I will create a regime as to how to prove that such conditions are met. This regime, hopefully, will reduce or rule out any possible misunderstanding of the sons that the mother intentionally creates hurdles of their removal for holidays, which, in my view, is not helpful for the re-construction of the mother-and-sons’ relationship.

52.  I thus order that:

(1)     leave shall be granted for the sons to be removed out of Hong Kong for overseas school trips by their respective schools. A letter signed by the headmaster or deputy headmaster of the respective schools to show the destination and travel dates of the school trip will be sufficient proof of such overseas school trips;

(2)     leave shall be granted for the sons to be removed out of Hong Kong for holidays by each party during the following periods:

(a)     once a month to the Greater Bay Area on a saturday for 24 hours or less (but excluding any saturdays which fall within (i) the examination week(s) and (ii) one week before the commencement of the examinations of the sons), upon giving 48 hours of prior notice to the other party at his/her email address (details of the email addresses will be inserted into the court order) ;

(b)     in addition to paragraph (2)(a), one additional removal during each of the sons’ school long holidays, ie the summer holiday, the Christmas/New Year holidays, the Chinese New Year holiday and the Easter holiday (save and except the last 2 days of each of such long holidays) :

(i)     if the trip is more than 3 days, upon giving 60 days’ prior notice to the other party at his/her email address;

(ii)     if the trip is 2 days or less, upon giving 14 days’ prior notice to the other party at his/her email address;

(c)     the information to be provided when giving prior notice to the other party in paragraph (2)(a) and (2)(b) above must include:

(i)     destination of travel;

(ii)    travel dates and mode, such as flight number(s) and time;

(iii)   accommodation such as name of the hotel(s);

(iv)   a copy of the travel insurance covering the sons;

(v)     who is/are travelling with the sons;

(d)     for the purpose of paragraph 2(a) above, the party removing the sons out of Hong Kong for holidays shall file and serve an affidavit/affirmation 2 days before departure enclosing (i) a copy of the school calendar of each of the sons’ schools; and (ii) a copy of the email to the other party showing that the information set out in paragraph 2(c) has been provided. The affidavit/affirmation so filed will be sufficient evidence that prior notice has been given;

(e)     for the purpose of paragraph 2(b) above, the party removing the sons out of Hong Kong for holidays shall file and serve an affidavit/affirmation at least 7 days before departure enclosing (i) a copy of the school calendar of each of the sons’ schools; and (ii) a copy of the email to the other party showing that the information set out in paragraph 2(c) has been provided. The affidavit/affirmation so filed will be sufficient evidence that prior notice has been given;

(3)    leave shall be granted to the party removing the sons out of Hong Kong for holidays to provide a copy of the letter from the sons’ respective schools (as stated in paragraph (1)), or a copy of the affidavit/affirmation (as mentioned in paragraph (2)(d) and 2(e)) to the immigration officer/staff for their reference at the time of removal;

(4)     this court order shall be served on the Director of Immigration by the father;

(5)     leave be granted to the parties to provide a copy of this court order to the respective schools of the sons;

(6)     there shall be no order as to costs of this application, including costs reserved and this trial;

53.  I shall hold the parties to their undertakings in respect of the removal in paragraph (2) as follows:

(1)     that the travel dates with the sons shall not affect the school attendance of the sons;

(2)     that he/she shall provide photographs of the sons to the other party on a daily basis during the trip;

(3)     that he/she must accompany the sons in the removal.

54.  A penal notice is endorsed with this court order. Personal service of the order shall be dispensed with.

55.  For the benefit of the parties, in particularly the mother, I shall order that this order shall be drawn up in Chinese.

[1] Upon further checking of the hearing bundle [71-72], it was actually the elder son’s school which had arranged a presentation of the school trip by the students on 17 April 2025, and that the school would end at 12 noon.

[2] See footnote 1.