YSYM v. LHB

CAMP 24/2020 & CACV 252 /2020
[2020] HKCA 586

CAMP 24/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 24 OF 2020

(ON AN INTENDED APPEAL FROM FCMC NO 19025 OF 2012)

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AND

CACV 252/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 252 OF 2020

(ON APPEAL FROM FCMC NO 19025 OF 2012)

________________________

(Heard together)

________________________

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REASONS FOR JUDGMENT

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Hon Kwan VP (giving the Reasons for Judgment of the Court):

1.  We have before us an application by the petitioner for leave to appeal to the Court of Appeal against the judgment of Deputy District Judge J Chow on 25 February 2020 (“the Judgment”). We will refer to the petitioner as “the Mother” and the respondent as “the Father”. By the Judgment, the judge dismissed the Mother’s application for leave to remove the children of the family (two boys now aged 14 and 13; “the children”) from Hong Kong to Canada for the purpose of education. By a decision on 8 April 2020 (“the Leave Decision”), the judge refused to grant leave to appeal against the Judgment.

2.  The Mother renewed her application for leave to appeal by a summons in these proceedings dated 22 April 2020.  On 23 April 2020, this court directed the leave application be heard as a ‘rolled-up’ hearing, so that in the event leave to appeal is granted, the hearing would be treated as the appeal proper.

3.  The Mother and the Father appeared in person before the judge in a three-day hearing in November 2019, which resulted in the Judgment.  The Mother is now represented by Mr Eugene Yim in her application for leave to appeal.  The Father continues to act in person in the hearing in this court.

4.  At the conclusion of the hearing, we granted leave to the Mother to appeal against the Judgment and allowed her appeal.  These are the reasons for our judgment.

Background

5.  The relevant background matters are taken largely from the Judgment, the judgment of HH Judge Bruno Chan on ancillary relief matters on 11 February 2014 and the social investigation report dated 6 June 2019.  They may be stated as follows.

(1) General background

6.  The Mother and the Father were born and raised in Hong Kong.  The Mother obtained her university degree in the UK in about 2000.  After returning to Hong Kong, she worked in various jobs in marketing and financial management. She was aged 43 at the time of the trial in 2019.

7.  The Father graduated from the Chinese University of Hong Kong in 1997 with a degree in medicine and has since practised as a medical doctor, specialising in orthopaedics.

8.  The parties met in Hong Kong and started cohabitation in 2001.  When the Mother became pregnant with the elder son, she ceased working in late 2005 and the couple registered their marriage in February 2006.  Three months later, the Mother gave birth to the elder son.  The younger son was born in May 2007.  It was only in 2008 that she returned to full-time employment in an insurance company.

9.  In 2008, the Mother petitioned for divorce.  She later reconciled with the Father and withdrew her petition.  In 2009, they purchased in joint names from their landlord their rented apartment in Caine Road, Hong Kong.

10.  In May 2011, the Father moved out of the matrimonial home.  The Mother petitioned for divorce in July 2011.  This triggered off most bitter and acrimonious proceedings on all fronts with numerous applications on both sides and on every issue over their financial disputes and the children.  A total of 12 social investigation reports (“SIR”) were prepared by the Social Welfare Department (“SWD”).  For the purpose of the hearing before the judge in November 2019, a fresh SIR dated 6 June 2019 was provided.  The handling social welfare officer Mr Lau Tak Hon Paul (“SWO”) has followed the children’s case for years and is very familiar with it.

11.  On 1 November 2012, Judge Bruno Chan granted sole custody, care and control of the children to the Mother with defined access to the Father.

12.  By the order for ancillary relief made on 11 February 2014, the Father was ordered to transfer all his share and interest in the Caine Road property to the Mother free of all mortgages and encumbrances, in full and final settlement of all claims between them.  The Father was also ordered to pay to the Mother $20,000 per month for the maintenance of each child of the family totalling $40,000 per month until the child reaches the age of 18 or completes full time education whichever is later.

13.  The Mother has since sold the Caine Road property for over $12 million and moved with the children to rented premises in Pokfulam at a rental of $60,000 per month.  They have a domestic helper.  The Mother kept the sale proceeds of the property as fixed deposit.  She resigned from her previous company in September 2018, having undergone an operation in mid-2018.  She has no major illness and is healthy mentally and physically.  Her only complaint is that she has long been under stress by the persistent court proceedings.  She does not have a relationship at present.

14.  The Father has formed a new relationship and lives with his girlfriend and their four-year-old daughter in rented premises in Causeway Bay.

(2) Access to the children

15.  Weekly access to the children was ordered since November 2011 and staying access was ordered from July 2012.  The Father complained that access was not carried out smoothly.  In November 2014, the Mother applied to reduce access and this was refused. The Mother then refused to participate in psychological therapy with the children.  From August 2015, access was unsatisfactory.

16.  On 19 October 2016, the Father applied to vary the custody order to one of sole custody, care and control of the children to him instead of the Mother.  The trial took place before the judge over five days in February and March 2018.  Judgment was handed down on 21 September 2018.  The judge declined to vary the order for custody.  She ordered that the Father is to continue to have supervised access with the children once a month for three hours, at the office of the SWO or any other place agreed by the Mother and the Father, and that the SWO may extend or abridge the duration of the supervised access as he sees fit.  The judge also ordered the Mother to create a separate email account for the children solely for communication with the Father.

17.  On 7 November 2018, the judge further directed the Mother and the Father to agree the access arrangement of the children on four dates as specified from November 2018 to February 2019, subject to the arrangement as to time of the SWO.

18.  From January 2018 to October 2018, only five sessions of supervised access were carried out.  All of them lasted from three to eight minutes only, except for the session in October 2018 which lasted for about 42 minutes.  It was joined by the Mother to discuss her plan of moving to Canada with the children.

19.  From November 2018 to June 2019, monthly supervised access was carried out.  Again, all sessions lasted from seconds to ten minutes only, except for the session in March 2019 which lasted for an hour to discuss the removal application.

20.  As shown by the limited number of supervised access sessions and the very short duration of them, the children have strong resistance towards access.  The SWO opined that they appeared to turn up for some sessions just for practical purposes, such as asking the Father for written consent for their summer trip to Canada in 2018.  Even when they turned up, they showed no wish to interact with the Father but wanted to leave as soon as possible.  The only two sessions in October 2018 and March 2019 which lasted for a longer time was to talk about the children’s wish to follow the Mother to Canada and their plan to study overseas.

21.  The children also had another meeting with the Father in March 2019 to discuss their plan of overseas study.  The Father asked them to go to his home for the meeting but the children refused as they did not wish to see the Father’s partner and his daughter.  They met in a café for an hour.

22.  The children had communicated with the Father by email since the special email account was created by the Mother for the children in March 2018.  They had more communications by email from mid‑February to mid-April 2019 about the plan of overseas studies.

(3) The children’s education

23.  At the time of the trial, the children were aged 13 and 12 and were attending Form 2 and Form 1 in the same direct subsidy school in mid-levels in Hong Kong.  The academic performance of both was average.

24.  According to the elder son’s school report for 2018-19, he ranked 17 in his class (total 33 students) and 116 in his form (total 198 students).  While he ranked 48 and 50 in English and Music in his form, he failed Chinese Language and ranked 181 in his form.

25.  The younger son got average marks of above 80 in his test and examination for 2018-19 in primary six, with grade B in Chinese Language.

26.  Both children expressed clearly their wish to study overseas.  They have found it hard to study in a local mainstream school. The elder son prefers the diversified way of learning in overseas studies and thinks he can learn to live independently and learn better English if he is to study overseas.  He was offered a music scholarship in January 2019 by a school in Devon, the UK.  He was very disappointed when the offer lapsed as he could not confirm his acceptance in time without consent from the Father.  He indicated no particular interest to study medicine if he is to study overseas.

27.  The Mother had applied for four schools in Vancouver and three schools in the UK for the children.  The schools were chosen according to the children’s preference, their current academic assessment and entry tests results.  The children were accepted by the school in Devon as full boarders in Year 9 and Year 8, and by a good private school in Vancouver where they could attend as boarders or day scholars.  When the offer of the school in Devon lapsed, the younger son indicated that he preferred to be a day scholar in the school in Vancouver as he wanted to spend more time with the Mother.  The children had visited the school in Vancouver during their summer trip in 2018 and both were satisfied with the school environment. 

(4) The Mother’s application

28.  The Mother’s summons to remove the children from the jurisdiction was issued on 17 January 2019.  She sought an order for leave to remove the children from Hong Kong from time to time for the purpose of education in the UK.  At the time of the summons, the intention was for the children to attend the school in Devon.  In her supporting affidavit filed on the same day, she stated that she applied for leave to remove the children from Hong Kong from time to time from August 2019 until they complete university for the purpose of education in the UK.

29.  After the offer from the school in the UK lapsed in March or April 2019, the Mother pursued an application for the children to study in Vancouver as they were accepted by a school which was also their top choice and she has managed to secure a job offer with a company in Vancouver in the financial and insurance field.  The Mother has paid a tuition deposit to secure a place for the children.

30.  The Mother and the children had started to look for overseas schools in 2017.  In 2018, the children had told the Father they preferred to study either in the UK or Canada.  They could not perform well in the local curriculum as they were weak in Chinese Language.  They were stressed by the volume of homework, the tests and examinations under the local mainstream curriculum.  Attempts to get into a good local international school have failed.  The Mother’s thinking was that they could achieve better grades studying overseas in an English learning environment and would have a better chance of being admitted to university.

31.  The Mother complained that she had been suffering from insomnia and exhaustion in working at a full time job, tending to the needs of the children as their primary carer, and being embroiled in litigation with the Father.  As the judge had noted, the litigation with the Father has been going on for more than ten years and the children’s life has become intertwined with the matrimonial litigation^[1].  The mother said that the fight over custody in 2018 was the last straw.  She blamed the Father that the children were not able to focus on their studies due to the persistent stress of court proceedings.  She regarded the job offer in Vancouver as a good opportunity for her as it was a full-time permanent position with flexible working hours at 40 hours per week and this would provide her with a stable income in a less stressful environment.  She did not intend to have a live-in domestic helper.  She thought the children would benefit from the more relaxed school environment in Vancouver with all-round education and would have more time to develop their interests in music and sports and ease their stress from the current focus on studies.

32.  The current position of the Mother is that her job offer still holds good.  She is expected to take up her new employment in Vancouver in August or September 2020.  As for the children, the offers of acceptance from the school in Vancouver remain valid.  The younger son will attend the school as a boarder and not a day scholar.  In light of the family’s circumstances, the school has agreed to defer their enrolment to 1 September 2020, subject to a mandatory requirement to self-quarantine for 14 days upon landing.  In the event leave of the court is granted for the children to be removed to Canada, they would be able to apply for student visa or dependants visa based on the working visa of the Mother.  The Mother has made an affidavit in these proceedings confirming the current position.

(5) The Father’s opposition

33.  The Father is firmly opposed to the Mother’s application to remove the children overseas, whether to the UK or Vancouver, for their studies.  He has also sought a downward adjustment of the children’s maintenance, which has yet to be dealt with by the Family Court.

34.  He alleged that the Mother made this application with the ulterior motive of cutting off his ties with the children.  He blamed the Mother for his poor relationship with the children.

35.  He asserted that the children performed very well in the local school and moving to Canada would not bring any good to them. If the Mother really considered overseas studies were beneficial to the children, she should have proposed to put them in a local international school a few years back.  And if the present school in Hong Kong did not suit the children, the Mother should have considered a school for them in a lower banding. He criticised her for not letting the children know the difference of the education systems in Hong Kong and overseas.  He was upset that he did not receive the school reports and school notices of the children.

36.  For each of the overseas schools chosen by the children, the Father asked for a statistical analysis of the percentage of the medical school acceptance among the other schools in the country.  In an email to the children in April 2019, he advised them that the school in Vancouver was not a good choice if they wanted to study medicine and that their chance of gaining entry to a medical school would be low if they studied in the school in Devon.  He suggested other schools in the UK would be better for them.  He offered to find a tutor to boost their interest and competency in the Chinese Language subject and to help them gain admission to a school run by the English Schools Foundation in Hong Kong, so as to prepare for their studies overseas eventually.

37.  The Father did not think the Mother could take good care of the children in Vancouver without assistance.

38.  The Father is prepared to take care of the children if the Mother’s application to remove them to Canada is refused and she is to leave Hong Kong to take up employment in Vancouver.  He criticised the Mother as being selfish in that she did not care about the children who indicated that they would rather go for residential care arranged by the SWD than stay with the Father if the Mother should leave Hong Kong without them.

The Judgment

39.  The judge heard evidence from the Mother, the Father and the SWO over a three-day hearing.

40.  She set out the relevant legal principles discussed by Cheung JA in BA v BL (Child Relocation) [2019] 4 HKLRD 23 at §§4.1 to 4.14.  In gist, the paramount consideration is whether the relocation is in the best interests of the child.  Guidance on the approach given by Thorpe LJ in Payne v Payne can be summarised as follows: “(1) Is the Mother’s proposal genuine and realistic?  (2) Is the Father’s opposition genuine?  What is the extent of the detriment to him if leave is granted and how far may this be set off by the child’s relationship with the maternal family and homeland?  (3) Impact on the Mother of a refusal of her proposal.  (4) The outcome of the second and third appraisals must be considered in the overriding review of the child’s welfare as the paramount consideration”.  The value of the guidance in Payne v 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” (K v K [2012] 2 FLR 880 at §144).

41.  The judge went through these six factors in her analysis:

“(a) Is the mother’s application to remove the children to study in/relocate to Vancouver genuine in the sense that it is not motivated by some selfish desire to exclude the father from the children's life?

(b) Is the mother’s 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 children’s welfare or is it driven by some ulterior motive?

(d) What would be the extent of the detriment to the father and his future relationship with the children were the application granted?

(e) What would be the impact on the mother, as a single parent, of a refusal of her proposal?

(f) The review of the child’s welfare as the paramount consideration, directed by the statutory checklist in so far as appropriate.”

42.  In her discussion of the issue in (a), the judge referred to the Mother’s admission that her application for the children to leave to study in Vancouver was in reality an application for permanent relocation of the three of them.  The Mother testified that she would land in Vancouver on a working visa and take up employment.  She would be able to apply for permanent residency after working there for a number of years and she intended to proceed with such an application in time^[2].

43.  The judge’s findings in respect of the issue in (a) are difficult to reconcile.  She first stated that she “cannot be sure of whether the mother has an ulterior motive to exclude the children from the father’s life but … can be sure the mother definitely wished to exclude the father from her life.”^[3]  She then held that the Mother “could not pass the Payne v Payne test” in that the Mother has simply put the burden on the SWO and the court to arrange accommodation for the children after her departure (if her application should be refused) and opined that “when a mother prioritise her interest over the children, if it is without ulterior motive, she is selfish”^[4]. She referred to the Mother’s admission of her intention to apply for permanent residency eventually and said “this is a very strong indication on the motive of the mother to bring the children with her and to exclude the father permanently”^[5].

44.  However, in the concluding paragraph for this issue^[6], the judge’s thinking took a turn in the other direction.  She stated that she did not believe the Mother would leave the children behind and go to Vancouver alone to take up the job.  She considered the Mother had only sought to persuade the court by “exaggerating her future move to proceed to Vancouver should leave be refused” and anticipated that the Mother would stay with the children in Hong Kong.  She concluded that the Mother has “no real ulterior motive to exclude the children from the father’s life save and except [she] has acted in a way [to create] such an impression”.

45.  It would appear that the judge had answered the issue in (a) in the negative, namely, that the Mother’s application to remove the children to study in or relocate to Canada is genuine in that it is not motivated by some selfish desire to exclude the Father from the children’s life.

46.  For the issue in (b), the judge held against the Mother and found that her removal plan was “inappropriate and insecured [sic]”, “not well researched nor investigated”^[7] for a number of reasons.

47.  Firstly, the judge found it “unreasonable and risky” for the Mother to take up a full-time job and shoulder the burden of taking care of the children at the same time^[8].

48.  Secondly, the Mother is only holding a working visa; no contingency plan has been submitted by her if she is required to leave Canada in the event her employment is ended, so the safety of the children “cannot be safeguarded”^[9].

49.  Thirdly, the Mother has no connection in Vancouver save for a distant relative who is her uncle and has retired.  Although the SWO has contacted her uncle who has confirmed that he would have the time to help look after the children whenever needed, the judge has reservations as she found it difficult to ascertain the true extent of the assistance the uncle is able to offer without an international social investigation report^[10].

50.  Fourthly, the judge is doubtful and critical about the arrangements and plans made by the Mother for the children’s education. She took the view that the Mother was “overwhelmingly occupied by her desire to leave the jurisdiction without a clear understanding of the education or examinations that both children will be facing in their life ahead”^[11]. She criticised the Mother for making “no thorough research on the difference in curriculum between United Kingdom and Canada”^[12]; for arranging Spanish lessons for the elder son only during weekends to prepare him to meet the level required for a second language in the Vancouver school^[13]; for leaving the Chinese language skill at a very low priority which is not to the best interest of the children^[14]; for not arranging the children to attend the summer preparatory course of the school in Vancouver in 2019 and merely arranging them to attend the summer camp arranged by the school in 2018^[15]; for not arranging a fall-back plan if both or either of the children could not adapt to the school in Vancouver as that school ranked high in academic achievement and there “might be a significant risk the children might not be able to meet its demand” when they had not attended any bridging courses^[16].

51.  Fifthly, the judge is seriously doubtful whether the Mother can put in action her proposed access arrangement to bring the children back to Hong Kong once a year, as the children have resisted the Father and access within the jurisdiction is very limited^[17].

52.  For the issue in (c), the judge found that the Father’s concerns about the children’s education were relevant and genuine^[18], and although it is premature to say whether the children will be admitted to medical schools, the Father’s view on the choice of schools should be given due consideration as he has knowledge in looking for medical schools worldwide^[19].  The judge took the view that the Father “has reasons to challenge the mother lacks parental skills”^[20].  She accepted that the Father’s opposition is genuine^[21].

53.  As regards the issue in (d), being the extent of the detriment to the Father if the application was granted, the judge was uncertain of the father and son relationship after the children’s departure but thought it more likely than not that access would be worse than now and the chance of rebuilding their relationship is almost impossible^[22].

54.  Turning to the issue in (e) being the impact on the Mother if her application was refused, the judge took the view (different from what she had found earlier) that refusal of the application would have no impact on the Mother, leaving aside her emotional feelings, as she was determined to start a new life in Vancouver^[23]. The judge made another contradictory finding that the Mother agreed to leave the children behind if the court should refuse the application and regarded this as de facto giving up the custody, care and control of the children^[24].

55.  Lastly, the judge reviewed the children’s welfare as the paramount consideration in respect of issue in (f) and weighed a number of factors.

56.  First, she noted the ages of the children (13 and 12 at the time), who expressed their unequivocal view to the SWO they wished to stay with the Mother and to study in Vancouver and that they would choose to stay in a boys’ home or a foster home arranged by the SWD but not with the Father if the Mother’s application was refused^[25].  The judge said she “highly respected” and “well noted” the children’s view, but “there are other more imperative factors” to be considered^[26]. 

57.  Second, she looked at their academic results in Hong Kong and remarked that unsatisfactory academic result is just one of the reasons that parents would consider sending their child to study overseas.  The judge regarded this point as “rather neutral”^[27]. She did not agree the children lack opportunity to study in a local international school and remarked that their failure to get into one was due to the Mother’s choice as she had opted for two very popular international schools^[28].

58.  Third, the judge declined to adopt the recommendation of the SWO who supported the Mother’s application.  She did not think the SWO was biased as alleged by the Father.^[29]  She agreed with the Father that the SWO “may not be able to consider the education plan to the fullest extent”^[30]. Further, the SWO had not explored the situation of the Mother having to leave Canada if her working visa should be revoked for any reason and that was a matter that gave the judge “serious concern”^[31].

59.  Fourth, she took into account the Mother’s concern about the social unrest in Hong Kong at the time and that it would be in the children’s best interest to bring them abroad for education so the Mother could have effective parental control over them.  Although the judge regarded this concern as valid, she did not think it was a “determinative reason” to remove the children to Canada^[32].

60.  Fifth, the judge considered the children’s accommodation if the application was refused.  She was uncertain if the Mother would leave them behind, so she directed a directions hearing after the handing down of the Judgment, with the presence of the SWO, to explore the choice of accommodation of the children^[33].

61.  In light of her conclusions and findings on the issues in (a) to (f), the judge refused the Mother’s application to remove the children to Vancouver for further studies or relocation.

The proposed grounds of appeal

62.  Mr Yim raised these six grounds of appeal on behalf of the Mother:

(1)  the judge failed to consider adequately or at all the impact of a refusal of the application on the Mother;

(2)  the judge failed to give any or any sufficient weight to the children’s wishes;

(3)  the judge erred in departing from the recommendations of the SWO in favour of the Mother’s application without properly or sufficiently reasoning that departure and without testing any misgivings that she may have developed from the SIR dated 6 June 2019 with the SWO in the witness box and as such she failed to give sufficient weight to the SWO’s recommendations;

(4)  the judge failed to consider adequately or at all the impact or effect of a refusal of the application on the children;

(5)  the judge erred in concluding that the Mother’s removal plan was “inappropriate and insecured” and “not well researched nor investigated”; and

(6)  the judge erred in failing to address the children’s welfare in a holistic way by conducting a balancing exercise by reference to each parent’s options and plans, analysed separately and evaluated comparatively and proportionately.

63.  The same grounds of appeal were advanced in the leave application before the judge as in the renewed application in this court. In refusing leave to appeal in the Leave Decision, the judge adhered to the reasoning in the Judgment and rejected each of the proposed grounds of appeal as having no reasonable prospect of success.

64.  In the draft notice of appeal, Mr Yim sought an order that leave be granted to the Mother to permanently relocate the children to Vancouver, Canada.  Upon our clarification with him at the hearing about the evidence mentioned earlier that the Mother is at present not in a position to apply for permanent residency in Canada, he informed this court that the Mother would only seek leave to remove the children to Vancouver, Canada for the purpose of education.

The granting of leave to appeal

65.  The requirement for granting leave to appeal is set out in section 63A(2)(a) of the District Court Ordinance, Cap 336.  Leave to appeal shall not be granted unless the court is satisfied that the intended appeal has a reasonable prospect of success or there is some other reason in the interest of justice why the appeal should be heard.  It is well established that a reasonable prospect of success means an appeal with prospects that are more than fanciful without having to be probable (SMSE v KL [2009] 4 HKLRD 129 at §17).

66.  As the intended appeal is against the exercise of the discretion of the judge (who had heard the witnesses and considered all the evidence) relating to the custody and welfare of children, the basis upon which the appeal court could intervene is limited.  It has to be satisfied not merely that the judge had made a decision with which the appeal court might reasonably disagree, but that the judge’s decision was so plainly wrong that the only legitimate conclusion was that he had erred in the exercise of his discretion (G v G (Minors: Custody Appeal) [1985] 1 WLR 647).

67.  Mr Yim referred to Re W (Permission to Appeal) [2008] 1 FLR 406 at §§20 and 21 for further guidance on granting leave in the context of an application involving children.  Wall LJ stated that leave to appeal shall be granted where any of the four questions below is answered in the affirmative:

(1)  Did the judge arguably make any error of law in reaching his conclusion?

(2)  Was there, arguably, insufficient material on which the judge could properly make the findings of fact and the assessments of the witness which he did make?

(3)  Is it arguable that the order he made was not properly open to him in the exercise of his judicial discretion?

(4)  Is there, arguably, any error in the exercise of that discretion which enables the appeal court to say that his order was, arguably, plainly wrong?

68.  We are satisfied, for the reasons to be mentioned in the next section of this judgment, it is arguable that there is error in the exercise of discretion which would enable us to say that the Judgment was arguably plainly wrong.  It is clearly appropriate to grant leave to appeal.

Our decision on appeal

69.  The judge’s exercise of discretion was vitiated by a number of errors.

70.  First, the judge has failed to give any real effect to the children’s strong wishes expressed unequivocally in the SIR not to continue their secondary education in Hong Kong but to study overseas. They have also given their reasons in their separate letters in Chinese to the judge as exhibited to the Mother’s affidavit in June 2019.  They are adolescents capable of forming and articulating their views on the pursuit of their own education.  And they are individuals with aptitudes, interests, skills, abilities, inclination and temperament that may well differ from the attributes of their parents.  The Father may have his own good reasons for using the criterion of medical school acceptance to gauge the suitability of a secondary school for the children.  But that is not to say that the Father must have considered the education plan “to the fullest extent” or that his views on the choice of schools should be given “due consideration” in preference to the views of the children.

71.  Rix LJ had this to say in Re R (Residence Order) [2010] 1 FLR 509 at §§57 and 58:

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

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

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

‘But there is now a growing understanding of the importance of listening to the children involved in children’s cases. It is the child, more than anyone else who will have to live with what the court decides.’

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

72.  We think the above comments apply aptly to the judge’s discounting of the children’s wishes to study overseas, which are entirely rational, made after much thought and planning with the Mother, out of the strong desire for change in light of their perceived inadequacies of their local schooling.

73.  Further, as the judge had reasoned against and rejected the wishes of the children, who, more than anyone else would have to live with what the judge had decided, it is fair to say that she did not appear to have assessed properly the impact of her refusal on the children.  The SWO gave evidence of his concern that the children’s frustration and anger might deepen their resistance and hatred towards the Father and they might even turn to violence, if it should transpire they had no choice but to live with the Father and his new family^[34]. This was not addressed in the Judgment. As pointed out by Mr Yim, the judge had merely directed a directions hearing after the handing down of the Judgment to explore the choice of accommodation for the children.  He submitted that there was no “side‑by-side evaluation” of the options of the children remaining in Hong Kong and their moving to Canada with the Mother.  We think there is substance in the complaint.  The judge did not appear to have carried out a proper appraisal before making her decision when she conducted a review of the children’s welfare as the paramount consideration.

74.  Second, in treating the Mother’s application as in reality an application to relocate the family of three to Vancouver permanently, the judge fell into error in setting unrealistic standards for a relocation plan which the Mother is presently unable to meet and which should not have material bearing to her application to remove the children to Vancouver for the purpose of education.

75.  The judge laid great emphasis on the fact that the Mother would be landing in Vancouver on a working visa, which is dependent on her holding a job there and if she should be out of employment and is required to leave Canada she has not put forward a contingency plan and so there is no safeguard for the safety of the children.  The judge expressed “serious concern” of the Mother taking the children with her without an application for a permanent visa, something which the Mother is unable to do until she has lived in Canada for a specified period.

76.  We fail to see how the visa status of the Mother should have any material impact on the education of the children.  We accept that the position before us is somewhat different in that both children would be attending the school in Vancouver as boarders instead of just the elder son. But that is not a material difference as the younger son had merely indicated his preference to attend school as a day scholar when the place of his education was changed from the UK to Canada.  Before the offer of the school in Devon lapsed, the application was made on the basis that both children would be attending school as full boarders.  If the mother’s working visa is revoked and she is unable to continue to reside in Vancouver, she would need to make arrangements for the children’s accommodation during term breaks, either in Vancouver or in Hong Kong (assuming she is to return to Hong Kong).  But that is something that every parent would need to arrange for a dependent child attending a boarding school in another country.

77.  Besides, it is unrealistic to expect the Mother to apply for permanent residency at present when she is unable to meet the requirements until she has stayed in Canada for some time.  Whether she would succeed in obtaining permanent residency if she should apply in a few years’ time should not impact on the plan to send the children to Canada for education now.  The judge was clearly wrong to hold that the uncertainty of the Mother’s visa status would render her plan to remove the children to Canada “not viable”^[35].

78.  When the evidence is analysed in the proper perspective and context that the common wishes of the Mother and the children are for the children to be educated in Canada now, with the objective that the Mother would apply for permanent residency in time when she has met the requirements of the Canadian authorities, much of the criticisms and queries of the Father (largely accepted by the judge) regarding the Mother’s plans for moving to Canada should fall away.  Even though the Mother’s starting salary with the new employer (the salary was above the average income for a professional in Vancouver) would be much lower compared to what she had been earning in Hong Kong, the Mother had financial reserve of $12.6 million as in May 2019, sufficient to enable her and the children to settle down in Vancouver for some time.  She planned to rent an apartment in an area which can be reached within 30 minutes by car from the school.  Her uncle living in Vancouver was willing to help out in case of need.  The finding that it is “unreasonable and risky” for the Mother to take up a full-time job which would require her to sit for the insurance licence examination and look after the children at the same time cannot be supported, in view of the fact that the children would attend school as boarders and do not require the Mother to watch over them closely and attend constantly to their daily needs.

79.  Third, we do not think the two reasons given by the judge for declining to accept the SWO’s recommendation in supporting the Mother’s application are valid.

80.  It should be noted that in the SIR, the recommendation of the SWO was made on the basis that the Mother’s application for removal of the children was to study overseas^[36], not specifically for the permanent relocation of the children to Canada.  The recommendation was made “subject to validity of her job offer and continuation of the present level of her financial reserve”^[37]. One of the reasons given by the judge for declining to accept the SWO’s recommendation was that he had not explored the situation of the Mother having to leave Canada if her working visa should be revoked on any ground.  For the reasons given above, it was inappropriate for the judge to hold it against the SWO for failing to take such matter into consideration in making the recommendation.  The other reason given by the judge for not accepting the recommendation (that the SWO “may not be able to consider the education plan to the fullest extent”) is dubious, for the reasons already explained.

81.  The SWO has been following the children’s case for years and is very familiar with their circumstances.  His views and recommendation should be accorded due consideration and the court should be circumspect in departing from them without sufficient and cogent basis.  We have already mentioned that the judge had not addressed the concern of the SWO of the possible adverse impact on the children if the application was refused.

82.  Fourth, the judge made contradictory findings about the impact of the refusal of the application on the Mother.  We have mentioned this earlier in summarising the findings regarding the issues in (a) and (e) of the Judgment, which will not be repeated.  We have reservations if the judge had properly assessed the impact of the refusal on the Mother.

83.  For all the above reasons, we are driven to the conclusion that the judge was so plainly wrong that she must have erred in the exercise of her discretion.  We proceed to exercise the discretion afresh.

84.  The Mother has put forward new proposals for access arrangements when the children are to be residing in Canada.  We have taken account of the Father’s views on those arrangements.  Suffice to say that the new access arrangements, if they are carried out with the good will and understanding of all concerned, would be a vast improvement on the existing arrangements which have not worked properly for the last five years.

85.  The SWO expressed hope that it might be a turning point for the relationship of the Father and the children if the children are allowed to go to Canada for their studies in that the children’s present resentment towards the Father might change over time when the obstacles to their chosen path of education are removed.  We share the SWO’s views.  With their growth in maturity and understanding, it is entirely possible for the children to develop a better relationship with the Father in future.  We do not see their moving to Canada as in effect cutting off the Father’s ties with them.

86.  The order regarding the new access arrangements will be registered in the courts in British Columbia, so the Father will have a means of recourse to enforce the access arrangements as ordered by this court.

87.  Balancing all the factors we have mentioned in the earlier discussion, we are satisfied that the paramount consideration of the children’s welfare will be served in allowing the application for their removal to Canada for the purpose of education.

The orders

88.  We have made the following orders:

(1)  Leave be granted to the Petitioner to appeal from the judgment and order made by Deputy District Court Judge J Chow on 25 February 2020.

(2)  The Petitioner’s appeal against the judgment and order made by Deputy District Court Judge J Chow on 25 February 2020 is allowed and leave is granted to the Petitioner to remove the children of the family, [setting out the names and dates of birth of the children] (collectively, “the Children”), to Vancouver, Canada for the purpose of education.

(3)  The following arrangements as to access shall take effect upon the Children’s departure from Hong Kong to Vancouver:

(i)  The Children shall return to Hong Kong twice a year at the Petitioner’s expense during Christmas or Easter and summer holidays (in accordance with the Children’s school calendar) for at least 7 days for Christmas or Easter and at least 2 weeks for summer holidays, and the Respondent shall have staying access to the Children at the Respondent’s residence or other venue arranged by the Respondent and at his expense, the dates of such access are to be agreed by the Petitioner and the Respondent.

(ii)  The Petitioner shall accompany the Children to return to Hong Kong for either Christmas/Easter or summer holidays and shall use airline unaccompanied minor service when she is not able to do so.

(iii)  The Respondent shall have reasonable access (including staying access outside the Petitioner’s residence at the Respondent’s expense) when he visits Canada provided that the Respondent shall give the Petitioner not less than one month’s notice in advance of any intended visit(s) and the same has to be in line with the Children’s regular school schedule, the arrangements and details of such access are to be agreed by the Petitioner and the Respondent.

(iv)  The Petitioner shall provide the Respondent by email with copies of the Children’s school calendar, school reports and school notices within 7 days upon the Petitioner receiving any such document(s) and keep the Respondent informed by email of the Children’s academic performance regularly and any serious health issues of the Children.

(v)  The Respondent shall have reasonable access to the Children by way of email, telephone, FaceTime, WhatsApp or other electronic means, including but not limited to a minimum of 15 minutes per week for the Respondent to orally communicate with each child, the arrangements and details of such access are to be agreed by the Petitioner and the Respondent.

(4)  The Petitioner shall inform the Respondent by email of:

(i)  the address of her accommodation in Vancouver, Canada 7 days before her departure to Canada and of any change thereto within 7 days of such change;

(ii)  any change in the school of the Children within 7 days of such change.

(5)  The Petitioner shall cause a copy of this order to be registered with the Supreme Court/Provincial Court of British Columbia, Canada within 28 days hereof.

(6)  There be no order as to the costs of the Petitioner’s summons dated 22 April 2020 and of the hearing on 9 July 2020.

(7)  The order of Deputy District Court Judge J Chow on 8 April 2020 awarding the costs of the Petitioner’s summons filed on 17 March 2020 is set aside and replaced with an order that there be no order as to costs.