LDL also known as L, DS v. F, S

FCMP 226/2021

[2023] HKFC 227

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 226 OF 2021

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J U D G M E N T
( Relocation )

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This Application

1.  On 25 October 2021, Applicant Mother (“M”) filed an originating summons for:

a.  Joint custody, and shared care and control of the two children of the family; and

b.  The Respondent Father (“F”) shall in a timely manner inform consult and confer with the Applicant on matters of consequence related to the children’s upbringing and not make unilateral decision.

2.  Subsequently on 25 July 2022, M took out a summons for the children to be “returned from the jurisdiction of Hong Kong to the Philippines as soon as possible” (“Relocation Application”). This is in effect a permanent relocation application.

3.  F opposes the Relocation application.

4.  M appears in person, F has legal representation.

Parties background

5.  Parties met in Amsterdam in 2008 and were married in December 2009 in Italy. They then moved to France in 2011. F found employment there and M took up further post-doctoral studies. There are two children, both sons, the eldest (“Fr”) born in the Philippines in December 2013, and the younger one (“Ma”) born in France in February 2015 (together the “Children”); they are now 9 (almost 10) and 8 respectively.

6.  F is Italian and also holds French citizenship, he is age 40. He now works as the senior manager with a management consultant firm.

7.  M is Filipino and also holds Italian citizenship, she is age 37. She now resides in the Philippines since her move from France in 2017. She says she is a broadcast journalist and an event host.

8.  M moved to the Philippines with the Children in 2017, F continued with his French employer at their Hong Kong office, and flew over to the Philippines to spend time with the Children on weekends and holidays.

9.  The parties’ relationship deteriorated and resulted in an Italian Separation Agreement in September 2018.

10.  The Children stayed under M’s care in the Philippines from August 2017 to June 2021.

11.  The Children returned to Hong Kong with M’s consent in July 2021. There is no dispute that discussion was carried out between the parties commencing December 2020, and it was agreed that this is due to covid, and the fact the Children has no face-to-face schooling when in the Philippines. Since then, the Children have been living with F and his then girlfriend (“Ms B”) (now fiancé) and attend school near home.

12.  Both parties have re-partnered in 2020. Father got engaged to Ms B in July 2022. W has a boyfriend Mr R, who now resides with her.

13.  On 15 December 2021, interim care arrangement was ordered for when M was in Hong Kong, which went smooth. A non-removal Order was made at the same time. On her return to the Philippines, the parties made arrangement between then for M’s remote access to the Children, this too was smooth despite M’s complaint that the access was at times monitored by F and Ms B.

14.  On 28 April 2022, an Order was made for joint custody of the Children to F and M, with interim care and control to F and reasonable access to M, including defined remote access.

W’s Case

15.  In her opening submission, M talks about her elitist international education background in the Philippines, Spain, Italy, her teaching position in France for the last 10 years; and published research and awards. Then her illustrious career as an investment banker, news anchor and event hosts; and her multiple voluntary contribution to the community.

16.  She also says that she comes from a well-regarded political- academic family with ancestors who have safeguarded the rule of law for five generations; and how her forefathers have contributed to the Philippines Constitution, served in political seats, held senior position in the Philippines Judiciary, and others who are politicians, lawyers and head of academia.

17.  She says it was a “de facto separation” with F from December 2017, which led to the Italian Separation Agreement in September 2018. In brief, this agreement gives both parties “joint responsibility” of the Children, confirms that they will live with M in the Philippines, access arrangement, financial support from F, and possible future arrangement for the Children in Europe.

18.  During the time the Children were in M’s care in the Philippines, F has continuous access to the Children, including bringing them to Italy to visit the paternal relatives; this does not appear to be in dispute. In fact, the arrangement before the Children’s departure from the Philippines in July 2021 was smooth.

19.  M argues that despite the agreement for the Children to go to Hong Kong in July 2021, it was never meant to be permanent, and the family has agreed that there will be a permanent move to Europe in due course, with options after the 2021/2022 academic year.

20.  M alleges that F has a “pre-meditated intention” to keep the Children in Hong Kong for longer than agreed upon, at least until the end of their Elementary school.

21.  M argues that the Children’s status in Hong Kong is “de facto” residence and not habitual residence, one that has been created due to the time taken for her application in October 2021 to be heard.

22.  She complains that F has obstructed access, both remote and physical.

23.  M has a lot of issues with F’s fiancé Ms B, and has repeatedly asked that she is not to be part of the Children’s life; including not attending PTAs, ECAs, and not be involved with medical appointments; and she says that Ms B is asserting a parental role which causes the Children’s emotional distancing from her. She also says Ms B monitors her call with the Children.

24.  M calls three witnesses for her case:

a.  DM, the former nanny of the Children who testified to Ms B conduct and obstruction of access;

b.  LP, who is a family friend, and speaks to the obstruction of access in Hong Kong; and

c.  GL, who spent time with the Children when they were in the Philippines.

25.  M says she is the parent who is in the best position to provide the Children with a stable privileged life and will provide F with as much access as possible, “putting their needs first”.

H’s case

26.  F says that the Children has fully integrated into life in HK. At the time of trial, they are attending the second year in their current school. They have friends from school and activities and the community.

27.  The Children study French at school, and attend Italian language school on Saturdays. Their ECAs include swimming, tennis, and football.

28.  F says they have maintained contact with M via daily video calls, and weekly video calls with maternal and paternal relatives.

29.  Children have indicated their wishes to stay in HK through the updated SIR.

30.  After the Children left the Philippines in June 2021, M has demanded to speak to the Children daily, which was facilitated by F; but he says M was fixated with her belief that he and Ms B have been obstructive in arranging remote access.

31.  F says M has launched a deliberate campaign of harassment against Ms B and him, making false and baseless allegations, as well as communicating with threats and insults.

32.  F also says she has denigrated him and Ms B to the Children, involved the Children in the Court proceedings, pressurized the Children to contact her, made them feel guilty when they did not do so, refused to end call despite the Children’s bedtime; and asked for Ms B not to be involved with the Children. As the M seems to harbour a strong sense of animosity towards F and Ms B, F says it is unlikely that M will promote a relationship between F and the Children if they were to be allowed to move to Philippines.

33.  F also says that M can be emotionally unstable in times of stress and cites a number of examples from the time she was in the Philippines.

34.  F says M demands constant access to the Children. In a message to him in September 2021, she says:

“… the only thing I care about, that I have access to the children at all times, that I am aware of their whereabouts, I can contact all of you including their nanny immediately … I will take very opportunity to connect with them at every single moment of their lives”

He does not feel that M should ask to be able to speak to the Children all the time, and that she should appreciate that the Children will have their commitments and activities.

35.  F denies all of M’s allegation, and says there is:

a.  No malicious intention in moving to Hong Kong

b.  No exclusion of nor blocking of contact to M

c.  No coaching of the Children

d.  No abuse of the Children by Ms B

36.  It is also H’s case that as the Philippines is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“Hague”), and therefore M’s access should only take place in HK, and the non-removal order made on 15 December 2021 be maintained.

Social Welfare Reports

37.  There are two Social Investigation Reports (“SIR”), one before and one after the Relocation Application.

38.  The two SIRs were prepared by the same Social Welfare Officer (“SWO”) Ms K, who attended court for cross examination. She recommends that the Children remain in Hong Kong, F to have care and control, and defined access to M.

39.  An International Social Investigation Report was called for in July 2022 but was not prepared due to lack of response from the Philippines.

1^st SIR dated 14 April 2022

40.  The first observation I have from this report is that M does plan to go to Europe sometime in the future; she wants to go to France, while F wants to go back to Italy.

41.  The SWO reports that her observation of the Children with both parents are positive. Further, their interaction with Ms B is reported to be affectionate, spontaneous and happy; and the children to be relaxed, joyful and that they feel secure when playing around the house.

42.  The views of the Children in this first SIR (before the current relocation application) were captured as follows in §§31 and 32 therein:

Views of the children-in-question

31. [Fr] and [Ma] were interviewed individually. They were too young to comprehend their parents marital problem or the custody and access issues. [Fr] was an expressive boy. He was also attentive and polite in the conversation. [Fr] commented that his father was very funny while his mother was nice to him. He mentioned that he loved to stay with his father and his mother, and also loved their partners, [Ms B] and [Mr D]. They were equally important to him. He said he did a lot of fun things in Hong Kong with the father and [Ms B], and usually visited parks in the Philippines with the mother. He said his parents had no longer lived together and it was a long story to say. He could not well understand their story due to his young age. He then reduced his voices saying that he wanted his parents to be friends forever without argument. He also revealed that he once felt sad when his parents separated. At present, he was fine as he learned to accept it. [Fr] enjoyed much of his present school life. He wanted to stay in Hong Kong at least unit the pandemic had gone. Then, he wanted to stay with both parents no matter which places. He lastly said that it was his parents’ decision about the living places and he would follow them. During enquiry, [Fr] said he missed his mother and loved to chat with her. While his father said it was fine to call his mother anytime, he supplemented that he was busy every day and had to go to bed at 8:00pm. He welcomed to have access with his mother for longer time if he had spare time.

32. [Ma] was pleasant and responsive. He revealed that his father was very funny and always played board games with him, together with [Ms B] and [Fr]. His father would coach him to complete school works and sometimes [Ms B] would help. [Ma] said his mother was gentle and brought him to go to park in the Philippines. While living in Hong Kong, his father and [Ms B] did many fun things with him. During enquiry, [Ma] said he did not know why his parents lived separately. Anyway, he expressed his love for both parents on equally basis. While living in Hong Kong, he enjoyed having video or audio access with the mother. On the other hand, he supplemented that he had much engagement each day.

43.  In this report, the SWO summarizes the following in her Remarks and Recommendation:

37. During the present social enquiry, [F] and [M] had consensus for joint custody of the children. They also reached an agreement for [M]’s access to the children in which the arrangement was smoothly operated in general. The major concern of the parents was on the care and control of the children. [F] wished to be granted the care of the children in Hong Kong till the elementary schooling of the children to avoid them to encounter too many changes including the change of school and living community. He considered that [M]’s proposal of relocation to Europe together with the children was rush to decide. While [M] proposed to move to France, [F] preferred to relocated to Italy. At this stage, it was noted that the parents had different timelines for the relocation plan. Their children’s relocation plan was not solid and subject to different variables including parent’s employment, accommodation, schooling and care-giver for the children etc. Besides, [M] expected to have deliberation with [F] for the proposed care and control arrangement through the CDR hearing.

38. For the care and control of [Fr] and [Ma], the gathered information indicated that [F] was able to provide a satisfactory environment for the living of the children. Maintaining the care arrangement for the children at the abode of [F] as status quo was considered suitable, as it could also avoid too much changes for the children as well as could minimize the adverse impact on the children arising from parental separation, before the parents’ formulation of concrete care plan. Also, the two children, who are of tender age, were in need of regular routine as well as stable environment and social life exposure to help establish regular life pattern and develop interpersonal skills. Unnecessary changes including school and residential home environment would be unfavorable to their general development. To facilitate the children to be benefited from a happy childhood of a healthy two home family, the Investigating Officer appeals to the parents’ further commitment and cooperation to put aside their divergent views and to negotiate child-friendly care arrangement for the healthy upbringing of their beloved [Fr] and [Ma]. (My emphasis)

44.  At the end of this Report, she recommends joint custody, care and control to F, and defined access to M at their agreeable time.

2^nd SIR dated 13 December 2022

45.  This SIR was called after the Relocation Application.

46.  The Children’s views in this updated Report are reported at §§31 to 33:

31. [Fr] and [Ma] were interviewed individually. [Fr] was a polite and an expressive boy. He said he enjoyed very much to the living in Hong Kong. He particularly loved to visit Ocean Park and go hiking, which were super fun to him. At home, he also liked to play Nintendo Switch TV games and watch Netflix movies for an hour during weekends. He stated that he had a lot of friends from different classes in school of Hong Kong and his mother also met some of them. [Fr] then started to count his fingers and simultaneously uttered the names of his friends. He revealed to have around 15 good friends and a girlfriend. [Fr] was excited to tell that his school gained full marks, which was very good, in terms of wild variety of subjects and clubs as well as nice teachers. As compared to his schooling in [the Philippines], he also liked the kindergarten there. Nevertheless, he added that he merely attended home classes for one odd year before leaving [the Philippines] due to the pandemic. Overall speaking, he felt much better studying in Hong Kong, as compared to those in [the Philippines].

32. [Fr] considered that his father very nice and funny while [Ms B] taught him to treat people with more respect and trust. [Fr] stated that he also missed his friends and cousins in [the Philippines]. He admitted that he was happy in [the Philippines]. However, he was happier in Hong Kong for the accessibility of the public transport including bus, MTR, tram, train and ferry. In Hong Kong, it was much convenient for him to go one place to another. In [the Philippines], there were a lot of traffic. He was annoyed that he sometimes stayed in a car for 2-5 hours due to traffic jam. Besides, [Fr] expressed that he wanted to continue his studies in Hong Kong, saying till Grade 6. He particularly preferred computer science, Mathematics and “STEM” club. He considered that the school in [the Philippines] lacked variety of clubs. He understood his mother’s wish to reunite with him and [Ma] in [the Philippines]. He admitted that he missed his mother and his wish of staying in Hong Kong would upset his mother. However, he really wished to reside in Hong Kong. He proposed that his mother was able to visit him in Hong Kong at any time.

33. [Ma] was polite and cheerful. He said to enjoy much of his present schooling and his school scored “1000%” marks. He liked to attend PE class and loved recess time, playing with his friends. He loved both of his parents and they were equally good. He expressed his wish to stay in Hong Kong as he wanted to meet his friends here. He wanted to stay a little longer in Hong Kong, saying till Grade 3. During interview, [Ma] disclosed that he was upset by separated of his parents. He also had acknowledged that his parents had different proposals of place of residence, such as Hong Kong, the Philippines, Italy and France. At this stage, he enjoyed living in Hong Kong as he liked visiting Ocean Park, playing his dog and playing boardgames and card games with his father and [Ms B]. While he did not want to upset his mother, [Ma] said that he had never told his mother about his view.

47.  The SWO went onto explain her position of not giving support to M’s relocation application:

39. While [F] has been provided satisfactory care to enable the children to sustain normal development with stable emotion and sense of security and been dedicated to nurture the children in a well-structured way of living, it is not of the benefit of the children to disrupt the present care arrangement and life pattern. Taking into consideration of the present satisfactory caring condition of the children, the children's close bonding and intimate relationship with the father and the wish of the children, the removal plan initiated by the Petitioner mother is not supported. (My emphasis)

48.  F’s counsel submits that Ms K has 28 years of experience and has written about 30 reports for the Court. She has been involved with this case since December 2021, and met with the parties 4-5 times, with the Children 6-7 times (including 4 times alone), and Ms B twice. He submits that significant weight should be given to the SWO’s recommendation.

49.  M, on the other hand, makes the following complaints about the SWO:

a.  That there is language barrier which “immediately impedes Ms K’s ability to comprehend this very complex and nuanced case”

b.  That the observation time was minimal

c.  That the time when she met with the Children, they had hardly settled down in Hong Kong, or she met with them at the M’s air bnb or hotel, or it was at the height of the pandemic

d.  That the stipulation of the Children’s wishes to stay in Hong Kong is misleading and contradictory to her other statements

50.  It also transpires that the M has turned down the suggestion for the SWO to speak to her parents. She said to the SWO that she and her parents had reached an agreement not to be involved with her proceedings. And that as her father in on medication, she does not want to stress him. She told the SWO that her parents are afraid that the F would not allow them to see the Children. M says she has a good relationship with her parents, this was disputed by H, and contradicted by the Children’s account. Notably, the SWO was unable to perform an independent assessment of what she says.

Ms B

51.  Ms B is now F’s fiancé, they were engaged in July 2022.

52.  M says that her opinion of Ms B stems from information she obtained from the former nanny DM, and she also says that Ma told her that Ms B is abusive towards him.

53.  Her negative feelings for Ms B are reflected in her closing submission:

53. It is not difficult to see the interest of [Ms B] in this case. Without a higher education and coming from humble beginnings in [Country C], she was able to travel the world as an au pair ultimately settling in Hong Kong long enough to receive permanent residency just last year. As soon as she met [F], she began to live with him and currently resides in an apartment renting at HKD 36,000 per month – a sum she could never afford on her own. When asked how much she contributed, she nervously said she provided HKD 15,000 to rent expenses out of her “volatile” earnings of around HKD20,000 per month.

54. After a year of meeting, she is no longer working as a nanny and has now become a freelance photographer in an online business … where she holds office in [F] and the children's residence.

55. With our pre-nuptial agreement in place, [F] is set to solely inherit his family estate of at least 6 properties in Italy worth approximately EUR 2,000,000 several of which are currently under his name, and two of which [Ms B] has visited once briefly. [Ms B] is now symbolically engaged to [F], involving [Ma] in choosing the ring. She has expressed her ambitions to marry [F] in the Riviera family property.

56. My determined protection of the children is a threat to [Ms B]’s interests in elevating her lifestyle. Her push back became most evident in her lengthy affidavit and appearance in court as [F]'s only and categorically biased witness.

57. In a campaign for legitimacy, [Ms B] asserts herself as a stepmother, despite having no legal status to do so. A role at DSC (where she is elevated from nanny status to stepmother) appears to be one which [Ms B] holds very close to her heart. …

58. [Ms B] inserts herself in [F]’s parenting role as an “indispensable leam member”….

59. [Ms B]’s anxiousness to establish her position has invariably led her to pose a campaign to pit the children against me. … To wit, [Ms B] has been monitoring calls, overhearing, and deliberately squeezing information out from the children on a terrifyingly regular basis.

54.  Ms B gave evidence in Court and was cross examined by M. Her evidence was important as she is a carer of the Children alongside F. When accused of coming between M and the Children, she staunchly denies and says that she has only assisted F in the care of the Children, and availed herself to them when they need her. Her answers were clear and she remained courteous under M’s questions. Her relationship with the Children were corroborated by the SIRs, and photographs before the Court.

Mother’s witnesses

DM

55.  DM was the Filipino nanny hired by F to look after the Children for when they returned to Hong Kong in the summer of 2021. The M called her as witness to speak to how F and Ms B have allegedly obstructed her access and to attest to overhearing a phone call made by Ms B to a doctor where she allegedly held herself out as mother to the Children.

56.  Her witness statement shows that she speaks ill of Ms B, found out M’s name on a zoom call, searched for her on google and found out who she is, then looked her up and subsequently reached out to her via Instagram; all this behind F’s back and when specifically told not to. The following are taken from her witness statement:

a.  “I found it amusing that [Ms B] did not inform me that she, too, was a nanny and wondered why this needed to be kept a secret.”

b.  “[Ms B] gave me impossible tasks daily such as taking flights of stairs and rushing to buy items in the market …”

c.  That Ms B shouts at her, loves night life and loves to drink

d.  Over an incident at home, she said to F, “Sir, your partner loves to shout”

e.  That Ms B dominated the apartment with her personal belongings.

f.  “I was shocked to learn from [M] that [F] had only met [Ms B] on Tinder”

g.  “Whenever [F] was in the home, I can really say that [Ms B] acted in her best behaviour, extremely fun and kind to the children. However, when [F] would leave, … I would describe her actions as “limited” or indifferent.”

h.  She reached out to M on Instagram and started contacting her, and sending her information on the Children, without consent from F. And when she had concern of being found out, switched to Whatsapp communication. All the time, she was fully aware that she should not be doing so, and asked M not to tell F

i.  “The couple found many creative and downright ridiculous ways to keep the children occupied which I began to notice, as way to ensure that they simply had no free time before the call with their M”

j.  “While [M] and the children were talking, the couple would be outside the rooms within hearing distance, doing things but always with one ear alert and focused on overhearing the conversation”

57.  F’s counsel submits that she is a disgruntled former employee who resigned and was terminated during her notice period, and who started Labour Tribunal proceedings against F. She only worked 4 months with the family which ended in November 2021.

58.  F’s counsel also says as she is a “lived out” domestic helper and hence has little time to observe what was going on at their home at all times.

59.  F’s counsel further submits that her allegation was concocted and contradictory. Most importantly, he said:

“She entirely changed her story about the alleged video call with Dr H and her contemporaneous Instagram messages to the M do not contain the accusations detailed in her affidavit.”

“She said she was in a different room when the call took place, she did not notice how long the call took, she did not know who Ms B was speaking with or whether it was the “doctor or secretary”, then claimed she had been told it was Dr L, and she did not know the name [Dr H].”

60.  I accept this submission. I do not find her to be a credible witness, and therefore attach no weight to DM’s evidence.

61.  I also find that her commentaries, conduct and intentions to be inappropriate. And that the circumstances under which she reached out to M during and clearly after the termination of her employment; and how she has been brought in as her witness for this hearing, quite baffling.

LP

62.  LP says that M was a good friend of her husband when they worked in Amsterdam, they have remained close despite families going different ways geographically. She says that she was happy when her husband’s employment brought the family to Hong Kong followed by the parties’ return to Asia. Their children also spent time with each other.

63.  F contested that that he has only met her for around six times, and he did not see them even when they were all in Hong Kong.

64.  It appears that it is actually M who stays in touch with LP and her husband. After the Children’s return, she was in Hong Kong between 23 December 2021 to 20 February 2022 after 21 days of quarantine. She spent time with LP then, who speaks to seeing M keeping a strict schedule of delivering the Children to F after her access with them.

65.  As to the rest of her witness statement, where she says, inter alia, that there was zero communication between M and Children outside of access time, and where she was told about how F restrained the use of Apple Watch by the Children, and how F did not communicate with M; F’s counsel submits that her evidence is irrelevant and only hearsay, based on what M told her.

66.  It is accepted that M had a good time with the Children during access, and she is of course obliged to follow the Court Order in bringing the Children back to F on time. Hence those evidence from LP does not add much to the M’s case. However, as to the rest of her statement which are told to her by M, these were indeed hearsay, she is just repeating what the M has said in this case. I therefore attach limited weight to her evidence.

GL

67.  GL has known the M since 2018. She says that M is a friend, and a witness at her wedding. She was the Children’s home tutor when they were living in the Philippines. She attests at length to how she taught the Children, and how M, and the paternal and maternal grandmothers participated.

68.  F’s counsel say that her observations are limited to the time she spent with the Children while tutoring.

69.  I agree, and accept her evidence only with regard to the home tutoring she was conducting for the Children when they were in the Philippines.

The Maternal Grandparents

70.  It is M’s case that her Relocation Application is supported in part by the “emotional and childcare support from the grandparents”.

71.  However, it was brought to my attention that her claim of the “excellent relationship” with them is not supported by evidence. F’s counsel submits that “the documentary evidence was also filled with her own description of the deep animosity between them”. The following are quotes from the F’s closing submission:

“because me and my parents are not in speaking terms... imagine i have to hang out with my kids for one hour in the car in the heat on the street because i don't go in their house not because of lockdown or social distancing (it is a giant house) but because we are in very bad terms i don't anticipate to eνer step in there again... they dont support me and my work … I feel very isolated and alone ... we aren't arguing. we just truly dislike each other as people. i feel a wave of discomfort everytime my mother is near... i feel more about about strangers in abs cbn than my parents... i didn't realize how I would hate my parents”(May 2020)

…

“what asshole parents … they are not inviting me to spend holidays with them” (December 2020)

…

“My family situation with … my parents, well you already know. In normal time would tolerate as usual have world war 300 … I can no longer deal with their subtle mean comments and judgments … we have spent decades with deep resentment …” (December 2020)

“… of course my parents wont even meet [Mr D] or say hello, so whatever ... i dont know what the hell my parents are brainwashing [the children] with in that house and im worried” (December 2020)

…

“asshole parents it's their wedding anniversary so they are again planning a dinner without me ... i am sad for the kids they do not see a model of love they see discord” (May 2020)

“[F] when you do come here ... do not interact with my parents or my family They have been really mean to me … ” (June 2021)

“...I don't want you guys to stay at my parents' since I will feel bad ... Because I will again feel excluded and they have been very mean to me not allowing me to enter their house” (June 2021)

72.  The updated SIR reports this from the SWO’s conversation with the Children:

“As mother and grandparents were not ‘friends’ and had argument, the mother was said to have not visited the maternal grandparents and only picked them up in the house door of the grandparents.”

73.  It is notable that the SWO has made the following observations at the end of the updated Report:

“… Although [M] claimed that her parents would stand ready to provide her with child care support in [the Philippines], it was ironic that she did not want to involve her parents in the present social investigation and objected the Investigating Officer to contact them to ascertain the child care plan. Obviously, the child care arrangement after relocation could not be testified and was subject to various variables.”

74.  While I am inclined to believe that the maternal parents would be more than happy to take care of the Children in the Philippines; what concerns me is the overwhelming evidence that brought M’s credibility to question.

Legal Principles

75.  My starting point is found in s.3 of the Guardianship of Minors Ordinance (Cap. 13). It states that the best interest of the minor is the first and paramount consideration.

76.  The applicable principles governing relocation application were based on the English Court of Appeal case of Payne v Payne [2001] Fam 473 and adopted by our Court of Appeal in SMM v TWM [2010] HKFLR 308, [2010] HKLRD 37 CA where Cheung JA summarised them at §21 of his judgment as follows:

“1) …

2) …

3) The application should be approached as follows:

(1) Is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life? Then ask, is the mother’s application realistic, i.e. founded on practical proposals both well researched and investigated? If the application fails either of these tests, refusal will inevitably follow.

(2) If, however, the application passes these tests then there must be a careful appraisal of the father’s opposition: is it motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?

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

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

4) In short, the relevant factors are:

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

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

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

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

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

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

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

77.  In the recent case of BA v BL (Child Relocation) [2019] 4 HKLRD 23 the Court of Appeal per Cheung JA reiterated and further elaborated on the approach to be taken in relocation cases:

“4.12 This led to the more recent decisions of the English Court of Appeal such as K v K where it is stressed that, in the determination of applications for permission to relocate, the welfare of the child was the paramount consideration … The three judges in K v K, Thorpe, Moore‑Bick and Black LJJ were of the same view on this point.

4.13 …

4.14 … 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.

...”

78.  I also found the following from Lady Justice Black (as she then was) in the abovementioned case of K v K [2011] EWCA Civ 793 to be of assistance:

141. The first point that is quite clear is that, as I have said already, the principle – the only authentic principle – that runs through the entire line of relocation authorities is that the welfare of the child is the court’s paramount consideration. Everything that is considered by the court in reaching its determination is put into the balance with a view to measuring its impact on the child.

79.  HHJ I Wong has in his recent case of JTMW v NAV FCMC 8504/2017 [2020] HKFC 244 succinctly summarized important points of principles enunciated in the case of ZJ v XWN at paragraphs 53 - 55:

53. The Court of Appeal endorsed what Vos LJ said in Re C (A Child) (Internal Relocation) at [82] and [83],

82. I add a few words in an attempt to summarise the position that has now been reached. As counsel before us agreed, in cases concerning either external or internal relocation the only test that the court applies is the paramount principle as to the welfare of the child. The application of that test involves a holistic balancing exercise undertaken with the assistance, by analogy, of the welfare checklist, even where it is not statutorily applicable. The exercise is not a linear one. It involves balancing all the relevant factors, which may vary hugely from case to case, weighing one against the other, with the objective of determining which of the available options best meets the requirement to afford paramount consideration to the welfare of the child. It is no part of this exercise to regard a decision in favour or against any particular available option as exceptional.

83. ...

54. The Court of Appeal also dealt with the use of the “welfare checklist” in the balancing exercise. The “welfare checklist’ is only an aide-memoire. A judge is not required to mechanically list every factor to demonstrate that he has considered the same.

55. The Court of Appeal emphasized that the guidance in Payne or SMM v TWM or the welfare checklist are simply tools to assist a Family Judge in making the multifactorial assessment to reach a result which is in the best interest of the child after taking account of the potential impact on the parents: at [30].

80.  The consideration of guiding legal principles will be incomplete without citing what has been referred to as the welfare checklist factors, which have been listed in our “Children’s Proceedings (Parental Responsibility) Bill, and has yet to be passed as law in Hong Kong (the “Welfare Checklist”). These are factors that should be taken into account when determining issues relating to children and where their best interest is to be considered:

a. the ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding;

b. the child’s physical, emotional and educational needs;

c. the nature of the relationship of the child with each of the child’s parents and with other persons;

d. The likely effect on the child of any change in the child’s circumstances;

e. The child’s age, maturity sex, social and cultural background and any other characteristics which the court considers relevant;

f. The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

g. Any harm which the child has suffered or is at risk of suffering;

h. Any family violence involving the child or a member of the child’s family;

i. How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

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

k. The range of powers available to the court under this Ordinance in the proceedings in question.

l. Any other fact or circumstance that the court thinks is relevant.”

81.  With regard to recognition of Children’s point of view, H’s counsel has helpfully referred me to the case of Re D (Abduction: Rights of Custody) [2007] 1 AC 619 at 641 F-G, which involves a child then age 8:

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. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents’ views.

82.  H’s counsel also offered the following cases where views of children of a young age had been considered by the Court. Y v L [1998] HKFC 1 (child age 9); NAV v JTMA [2017] HKFC 24 (children age 9 and 7); YYW v HHW [2017] HKCFI 1094 (child age 8); and Re W (Minors) [2012] 2 FLR 1165 (child age 6).

83.  With these principles in mind, I shall proceed to apply them to the case at hand.

The Analysis

84.  I am convinced that both F and M are loving parents to their Children.

85.  Looking at the timeline, M has clearly not responded well to the Children leaving her care. On leaving the Philippines, the Children went off to a visit to Italy, and then Dubai, during which time M asked to be on long daily calls with them. And it appears that F and Ms B tried to facilitate. Granted there were times when these calls might have been affected, e.g. when there were alleged wifi limitation, or when the Children have to leave the hotel room for activities. M did not take it well, and she admitted in her closing submission that it was during that July trip in 2021 and her perceived obstructions then that she started legal proceedings regarding the Children. I reminded myself that this was only 3 weeks after the Children left Philippines, this is understandable, she missed the Children. 4 months later, she filed a Summons regarding the Children’s custody care and control, and then within the year, this current Relocation Application for returning the Children to the Philippines.

86.  It is not my intention to quote here the extensive exchange of emails and messages between the parties, but looking at them, I come to the view that she has indeed lashed out at F and Ms B excessively and repeatedly since July 2021, using rather strong language.

87.  While I have been directed to look at evidence regarding how they arrived at the decision to leave the Philippines for Hong Kong, and F’s allegation of M’s the mental state, I will not be making a finding of these issues for the purpose of this application. This case is not about whether a previous agreement is to be honoured for Children to live in the Philippines or Europe (M says that her consent for the Children to come to Hong Kong was only meant to be a temporary arrangement), what is to be considered here is in the best interest of the Children under the current circumstances and family dynamics.

Issues

88.  I will follow the list of issues guided by the above caselaw.

Is the application genuine and not motivated by M’s desire to exclude F from the Children’s life

89.  In my view, M’s application to bring the Children to the Philippines is borne out of her love for the Children and the fact that she truly misses them.

90.  But I am also of the view that her concerns that the Children are taken away from her, manipulated, and about access obstruction are misplaced.

91.  I do acknowledge that prior to the Children leaving the Philippines, F’s access was not in issue. In her statement of proposal attached to her opening submission, she offers generous access to F inclusive of physical access, remote access and shared holidays.

92.  Therefore despite her above mentioned concerns, in terms of assessing her motivation for this application, I do not believe that she makes this application out of an intention to oust F from the Children’s life.

93.  That said, this need to be further considered in the context of possible impact of this litigation on F’s future access to the Children, which will be dealt with below.

Is the application realistic and found on proposals well researched and investigated

Accommodation

94.  She submits her proposal with her opening submission. On this, she says, “The Children and I will rent a residence of similar or better standing to the one we had in the Philippines or what they currently have in Hong Kong.” It will have 24/7 security, and not more that 20km from the school.

Schools

95.  She has suggested schools to which the Children can enrol for elementary and secondary school but is open to other school options. She suggests the parties should split the costs of education.

Financial

96.  M’s occupation as a news anchor gives her a monthly salary of PHP120,000; she also expects F to honour the Italian Separation Agreement to pay her maintenance and feels that it would be adequate to cover the expenses for herself and the Children in the Philippines.

Care Plan

97.  M said that she will be able to care for the Children after work, she intends to hire domestic help, and also expect the Children to spend time with the maternal grandparents who live close by.

98.  F has made the following challenges to M’s relocation plan as unsound:

a.  It is not clear where she will live. F says she currently lives in a one-bedroom apartment with Mr R, hence no space for the Children

b.  It is not clear who will care for the Children when she is at work. F says she has let go of her domestic staff

c.  F contends that M has fallen out with her parents. She would not allow the SWO to interview her parents, and had an anxiety attack when her parents visited the Children in Hong Kong in November 2022 (they have contacted F without telling her)

d.  F says that the school that M has proposed is no longer appropriate. That the Children have not been in an in-person school environment in the Philippines since Covid, and they have attended traditional schooling in Hong Kong in the past two years. As the children are doing well at school, he says “to move them to a different pedagogical system would risk undermining their enjoyment and confidence in school”

e.  F further says that M has maintained that she wants to move to France, due in part to her concerns about healthcare and education in the Philippines. He says it is not in the Children’s best interest to be removed from the stability in Hong Kong to an unknown situation in the Philippines, only to face the possibility of yet another relocation to Europe

99.  I accept that M will need to set up residence if the Children were to go to the Philippines, that she will find domestic help if needed, and that she is open to discuss choice of school with F. But I consider that it is more important to look further into the future and if her plan to be in the Philippines is likely to be short term, then this will no doubt impact on the Children.

Is the F’s opposition motivated by genuine concern for the future of the Children’s welfare or is it driven by some ulterior motive

100.  I believe that F genuinely holds the view that it is in the best interest of the Children to stay in Hong Kong. He has a close relationship with the Children, who have settled down well and they are getting along with Ms B. He told the SWO that his “stable employment and desirable income” could afford stable environment for the Children.

101.  F’s quest for stability for the Children is well documented by the 2^nd SIR at §§28 and 29, extracts below:

a.  [F] reiterated that the children were in need of stability, in terms of schooling, peer association and living routine. Over the past years, the children had enrolled in different schools or school programs which hindered consistent academic development

b.  [F] also considered that the children had to develop stable peer relationship at school environment

c.  With his stable employment and desirable income, F stated that he could provide financial support regarding children’s education, training and living in Hong Kong

d.  [F] stated that his ultimate goal was to provide a stable living environment without any drastic change for the children

102.  The updated SIR describes how good the Children were performing at school in Hong Kong. Fr got grade A for all subjects, and was awarded “Student of the Month” for his outstanding contribution to school life; and Ma got A- for most subjects.

103.  Under this issue, I reminded myself the life that the Children have in Hong Kong as reported by Ms K. F argues that the continuation of stability for the Children is important to them. I agree. I am of the view that there is no ulterior motive on H’s part in his opposition to the Relocation Application.

Will the granting of the Relocation Application be detrimental to the H and his future relationship with the Children

104.  F’s counsel argues that “the Mother is extremely hostile to the Father and Ms B. Were the Children to move to Manila, they would likely be regularly exposed to her hostility, and the Mother is unlikely to promote a positive relationship.”

105.  While I do not take such an extreme view on this, I am very much alive to M’s sentiments about F and Ms B, and therefore of the view that M may not necessarily refrain from commenting negatively of them, consciously or unconsciously. If the Children are easily influenced, this may well affect their relationship with F, especially if they do not see him all the time.

106.  Furthermore, after this litigation, and if she were to continue to hold her negative opinion of F and Ms B, it is probable that M may not be as generous as she was in the past with regard to access, despite what she offers in her statement of proposals.

To what extent would that detriment be offset by extension of the child’s relationship with the maternal family

107.  The Children did spent time with the maternal grandparents while they lived in the Philippines. According to the SIR, they recalled those memories fondly.

108.  While the maternal grandparents will be physically close by in the Philippines, I am not of the view that this will make up for lost time with F. The SIRs are clear that the relationship between F and sons are close. I think it is important that the Children, being sons, should spend more time with F in their formative years.

What would be the impact on the M on the refusal of her realistic proposal?

109.  It is commendable that M made the agreement with F to allow him to bring the Children to Hong Kong. After having been the main carer of the Children since their birth, and certainly with the Children in her constant care for four years previously, it could not have been easy for her to let them go away. She has demonstrated that she is able to act in the best interest of the Children, knowing that it is the right thing to do.

110.  From her conduct after the Children left the Philippines, it is apparent that she misses the Children a lot; and she has transferred her anxiety into outlash at F and Ms B, which appears to be quite unfair. Even the SWO comments on M’s expression of her mistrust of F and Ms B to be “without justifiable grounds”.

111.  What is also apparent is that she has been reasonable and facilitated access to the F when the Children were with her. She has also shown that she is able to adhere to Court ordered remote access most of the time after the Children move to Hong Kong. F asks that she be reasonable in organising her calls with the Children recognising their school commitments, activities and bedtime; this is not an unreasonable request.

112.  M is reminded that it is important for her to accept Ms B’s role as one of the carers of her Children while they are in Hong Kong, to insist on ousting Ms B from the care of the Children could not be in their best interest. I am of the view that M is capable of and possess the largess of character to work with both F and Ms B to ensure the happiness of the Children so that they are sheltered from the parental conflict.

113.  M would no doubt be disappointed if the Court were to turn down her application, clearly defined access must be put in place to ensure her continuous connection to the Children, while removing any room for dispute with F over access. E.g. Previous arguments on the Children’s usage of the Apple watches she gave them need to be resolved, the time limit imposed for the Children to use their watches is considered a reasonable approach in balancing the parents’ views on such electronic devices.

Other factors to consider

114.  Having the Welfare Checklist in mind, there are additional factors to be weighed in this decision.

Wishes of the Children

115.  The wishes of the Children are summarized above with reference to the two SIRs, they wish to remain in Hong Kong.

116.  Despite the relatively young age of the Children, the updated SIR in particular indicates that they are able to articulate the bases of their wishes; and demonstrates their unwavering preference on this important issue.

117.  I am also mindful of the statement by Baroness Hale above-mentioned case of Re D (Abduction: Rights of Custody) [2007] 1 AC 619 at §57. What is to be done here is not a mechanical approach of deciding to consider the wishes of the Children based on their age, but also to consider the emotional and psychological impact on the Children in a decision to go or stay.

118.  There is no evidence before me that the Children’s wishes are not their own or have been manipulated by F or Ms B. The Children are happy here and have settled down well. To uproot them again in a short span of time having been here for only two years could not be their best interest; I shall accord substantive weight to their wishes.

Is W going to stay in the Philippines?

119.  H says that M has every intention to leave the Philippines and go to Europe.

120.  Looking at an email from the M to F in December 2020 when they started their discussion about taking the Children to Hong Kong, the following is said of her concerns about her career prospects, and quality of the school system and healthcare in the Philippines. To put this in proper context, the emails also shows at that point of time, they were still discussing plans, and weighing the options of bringing the children to HK.

At this point in time, the main disadvantages of being here are: I have no career opportunities long-term and I am worried of the instability of my job. I can hold on to it for a year or so (and bear the stress of [R] coming back as my boss) but overall, the level and quality of work is simply not commensurate to my level of education and skill and I’m not sure I can be happy long-term always complaining about the mediocrity of the system.

Second, the education is one of the worst in Asia … Eventually, they need to really be in a higher level schooling environment but it's not urgent:

Third, the healthcare is worrying me because of Covid. … But the healthcare if you DO get sick is of course really bad and scary.

121.  To further support this allegation, F’s submission contains the following extracts from their email exchange.

"FYI I do want to go back to Europe … anyway don’t worry I am already planning the exit” (October 2019)

…

“I hate this country” (August 2020)

…

“I want to be back in Europe … if you want we can move to Italy … but the [Philippines] is a mess, it’s not good for the kids and the career prospects are bad” (December 2020)

“… I don’t even want to stay here in [the Philippines] …” (December 2020)

"I have no career opportunities long-term and I am worried of the instability of my job... the level and quality of work is simply not commensurate to my level of education ... I'm not sure I can be happy long-term ... [the children] really need to be in a higher level schooling environment ... Long term, I believe it is in everyone's best interests to move back to Europe..." (December 2020)

…

"[The Philippines] is not for me. I can't wait to leave." (May 2021)

122.  Under cross examination, M confirms that her long-term plan is to move to Europe.

123.  If this is the case, I am of the view that it is not in the best interest of the Children to move to the Philippines and then be uprooted again to go to Europe with an indefinite timeline, together with all the uncertainties that arise therefrom.

Non-Removal Order in HK / Proposal for travelling out of HK

124.  F has asked for the non-removal order made on 15 December 2021 be maintained.

125.  As mentioned above, F is concerned that the Philippines is a “non-Hague” country. It is F’s evidence that M has “repeatedly threatened” that she would not rest until she takes the Children away; and that she told him that they will not come back if they go to the Philippines. He says that with her connections in the Philippines, she will be able to keep the Children, and he will have difficulty to access them at all. He produced the following Whatsapp messages from M (dated 4 October 2021):

“… You are a bad person and a horrible abusive father. I will do everything in my power for the children to never have to suffer under your care again, mark my words. Your actions are criminal.

… If you want a war, I am ready to fight for the freedom of my children from a bitter and deranged tyrant.”

126.  The following from their email exchange on 19 October 2021:

“…you are alienating me from them and limiting my communication to 7 pm daily with zero access to them the rest of the day … I will let them know every moment I will fight for them while they are held in your captivity and never be satisfied until they are free to have access to me 100%

… Do you not know who I am and what I am capable of as their mother, do you not know that I will never rest until this situation is managed? … So step off your artificial high horse and begin to concede and compromise because I assure you for as long as you do not , you will never be at peace.”

127.  And further from his affidavits:

a.  During a handover on 26 December 2021, he said M has told him “You will never see the children again”

b.  Then during a zoom call on 25 February 2022, she said “If you had not issued the travel restrictions for the kids I would have tried to get them out of Hong Kong … If something bad happens to them I will kill you! I will kill you!”

128.  Furthermore, F has in his latest Form J said that when the maternal grandparents visited Hong Kong in November 2022, they have warned him about the risk of the Children travelling to the Philippines, and the possibility that M might not return them to Hong Kong. I am conscious that this is un-tested hearsay, and I have placed limited weight on this information.

129.  M says that there is no risk of abduction. This is what she submits in her opening submission:

“The Department of Foreign Affairs of the Philippines’ Legal Team and Consul Atty [PS] of the Philippine Consulate in Hong Kong have informed me that the Philippines and Hong Kong have a binding bilateral agreement Mutual Legal Assistance in Criminal Matters (Philippines) Order (Cap 525 sub Leg.K), which may be invoked by both sides in case of issues involving child kidnapping …”

130.  F’s counsel submits the following in reply and I accept his argument. He says the Mutual Legal Assistance Treaty makes clear that:

a.  The treaty may only be invoked by the government;

b.  It operates for the purpose of assisting with criminal matters; and

c.  While abduction by a parent maybe a civil contempt, it cannot be a criminal offence under Cap 212.

131.  At the end of the hearing on 17 March 2023, I directed the parties to submit their proposals to me regarding safeguards for the Children to return to Hong Kong if the Applicant wishes to have access to them outside of Hong Kong; and for F to make his proposals and M to reply after.

132.  F’s proposal came in on 31 March 2023 after having made enquiries on the rules of the countries in which the Children can apply for passports, i.e. Italy, France and Philippines, and include inter alia:

a.  M to obtain an Order from the Philippines with regard to renewal or issuance of new Philippine passports to the Children to require signatures of both parents

b.  Both parties to inform French Ministry of Foreign Affairs that no passports shall be issued without both parents’ consent

c.  For a new agreement to supersede the previous Italian Separation Agreement and to be lodged with the Italian Court

d.  Access with Children outside of HK to be only in countries which are signatories to the Hague Convention

There were other provisions as to duration, and which holiday time, and the requirement of notifications.

133.  M’s response came on 11 April 2023, which include the following points:

a.  M opposes fervently the H position in not allowing the children to set foot in the Philippines “until they reach the age of 16”

b.  Children needs to be in the Philippines, and to reconnect with their home, and loved ones and friends and family. Not being able to go there the Children “will suffer tremendously from lack of culture and displacement from their own country, a traumatic situation that will negatively impact the rest of their lives”

c.  No evidence of abduction

d.  Children had been under her good care in the Philippines for 4 years

e.  Meeting the children in another country entails significant costs

f.  That F’s position arises from disdain from being forced to move to Asia, jealousy of her new partner, the loss of the benefits he enjoyed from her parents

g.  In her words: “Such illustrate an overall vendetta for the country he had spent 12 years visiting and benefiting from, and a deep pain harbored for seeing all he has lost as the main motivation for his unbecoming actions, shrouded in a Hague ruling argument and invariably neglecting the needs and desires of the children.”

134.  M did not address the F’s proposal for safeguards at all in her response, and evidently made no counter proposals except to disagree with the issue.

135.  This Court is painfully aware of the trauma which children can suffer if taken to a country, and in which legal proceedings are required to bring them back to the parent with whom they reside previously. They are not only caught between their parents, they also have to face uncertainties, and may become subject of investigations. Any remnants of trust which parties may have for the sake of their children will also disintegrate, and often beyond repair.

136.  In conducting this balancing exercise, I take the view that the Children can spend time with M outside of Hong Kong only after proper safeguards have been put in place. As there is no counter proposal from M, the existing non-removal Order shall stand until further application is brought before this Court.

Holistic assessment of what is in the best interest of the Children: the Balancing Exercise

137.  In this final step, I have taken into account the development of the Children and the importance of stability for them into consideration. Mindful that they did not have a proper regular schooling during Covid while in the Philippines, they have now been able to attend school in Hong Kong from 2021 till now. They have a settled routine, made friends, performed very well academically, participated in a number of extra-curricular activities, keep up with their foreign languages learning, and have been enjoying all that Hong Kong has to offer. It is their wish to stay on for some more time before moving again, a sentiment shared by both Children, and expressed in clear terms with explanation to the SWO.

138.  I also consider to uproot them now will affect them as they will have to adjust to the Philippines again and a new routine there. Granted that they were living there before, but now they are at a different age so new routine will be put in place. They have to leave the friends they have here, and to adjust to new residence, new schools and teaching environment. I make the finding that M intends to leave the Philippines in due course, although there is no timetable in place. I accept the evidence that she actually does not want to stay in the Philippines due to lack of job opportunities and a less desirable education and health care system. However, this plan to move has yet to be agreed between the parties, and there are uncertainties around how and when and where this will be. As said above, it is disruptive to the Children’s lives if they are moving around every few years.

139.  I accept the SWO’s finding that the Children has been in F’s good care, that a stable environment has been provided for them and will continue to be in place. I also find that there is no obstruction to access by F nor Ms B, and note in particular that when a Court Order has been put in place, the defined access has been reasonably followed. The need for a defined access in this case is clear, and parties need to respect Court Orders and mutual agreements.

140.  I am also of the view that the parties can actually communicate in the best interest of the Children, as long as they can put their love for Fr and Ma before their own personal perceptions, emotions and feeling, the Children will not be caught in a loyalty conflict with their parents. In the long run, the parties should best focus their energy on planning on that eventual move back to Europe.

141.  I therefore conclude that the best interest of the Children is best served by them remaining in Hong Kong.

Orders

142.  M’s Relocation Application is dismissed.

143.  Care and control of the Children be granted to the Father.

144.  The defined access Orders made in paragraphs 3 and 4 of the Order dated 28 April 2022 do stand until further Order of Court.

145.  The Non-removal Order made on 15 December 2021 do stand until further Order of Court.

146.  There shall be no Order as to Costs with Certificate for Counsel. This is a cost order nisi to be made absolute from 14 days hereof.