BWBP v. T KP nee DP

FCMC 2128 / 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 2128 OF 2009

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BETWEEN

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J U D G M E N T
( Relocation )

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Introduction

1.  This is an application by a Respondent Mother for leave to permanently remove the two children of the family out of the jurisdiction of Hong Kong in order to relocate with them to South Africa. The children, T and C, are aged 12 and 9 years old respectively.  The Father opposes the Mother’s application.  He wishes the children, who are both boys, to remain in Hong Kong and for their care to be shared between the parties on a more or less equal basis as they do at present. The father has also issued a summons to reduce his maintenance obligations in the event that the mother’s application is successful.

2.  This case once again brings into sharp focus the difficulties faced by international parents living overseas where one of them wishes to relocate. The mother has presented her case as a classic relocation application. She says that she wishes to return to the home of her birth after 15 years away, where she has family, friends and emotional support following the breakdown of her marriage. In other words she wishes to return “home”. However the facts of this case are a little different from the norm. In this instance there was clearly an intention that the boys would split their time between their mother’s and father’s homes on a more or less equal basis. Much of the evidence and the time taken up in trial were therefore concerned with such issues as what is meant by the term “primary carer” and what is meant by “shared care”. The case was further complicated by the fact that during the adjournment the Court of Appeal in England considered these very issues in the landmark decision MK v CK [2011] EWCA Civ 793 which was handed down on the 7 July 2011. I also intend to consider the ramifications of this case here.

What are the main issues to be considered?

a)   Could either parent be described as the primary carer of the children in the classic sense of that term?

b)   Should permission be given for the children to leave Hong Kong in order to relocate to South Africa with their Mother?

c)   How should the children’s time be allocated between their parents once the relocation issue has been determined?

Background to the marriage

3.  The parties are both originally from Africa. The respondent mother was born in Johannesburg. Her family are all based in South Africa. She also has close friends there. She holds a South African passport.

4.  The Petitioner father was born in Ndola, Zambia. Like many of his generation, he and his family eventually left Zambia and relocated to South Africa. They also spent time in the United Kingdom. The paternal Grandmother still resides in South Africa, close to where the mother now hopes to relocate. The father’s brothers however have moved on and one now lives in Chicago, USA and the other in Dublin, Ireland. The father gave evidence that he and his brother’s were hoping that the paternal Grandmother would also leave South Africa in due course, given her advancing age. They hope that she will move to Ireland to be close to the brother who lives there. The father holds both a South African and a British passport. He has no other family in South Africa. Both parties are permanent Hong Kong ID holders.

5.  The parties met in 1995 and began cohabiting shortly thereafter. The father is a pilot and later that year he accepted a position to work with A in Hong Kong. In February 1996, after a period of training he relocated to Hong Kong and began working for the airline. The father is now 42 years of age.  He is a Captain with A. The mother is a speech therapist and audiologist by training and background. She also holds a Masters degree from the University of Pretoria in Alternative and Augmentative Communication. The mother is now 40 years old. In April 1996 the mother joined the father in Hong Kong and in January 1997 the parties married in South Africa. They returned to Hong Kong shortly thereafter and have been based in Hong Kong ever since i.e. for the last 15 years.

6.  The eldest child T, a boy, was born in September 1999 and is, as I have said, 12 years of age. C, a second boy followed. He was born in January 2003. He has just turned 9 years of age. They were both born in South Africa.

7.  Both during the marriage and since it seems that the mother has pursued a number of interests for personal growth reasons. These have been identified as “the Journey”, “Biodanza” and “Awakening the Dreamer”. The mother is now a practitioner with “the Journey” and she produced a leaflet during the hearing which described it as follows:

About The Journey

The Journey is cutting-edge transformation and healing work pioneered by internationally acclaimed, best-selling author, speaker and mind-body-healing expert Brandon Bays.  It is recognised worldwide as a uniquely potent tool for awakening and liberating the infinite human potential.  The work has helped thousands of people worldwide free themselves from issues like fear, anxiety, stress, depression, low self-esteem, chronic anger and rage, physical illnesses and disease, and those relating to addictions and unhealthy behaviours, sexual abuse, relationship problems and career performance.

8.  The mother herself is referred to in the leaflet as (See R-1)

T-K [the respondent] has played an active part in spreading journeywork throughout Asia for the last 5 years.  Her warm and compassionate nature has held the embrace for hundreds of children and adults alike to experience the transformational tools of The Journey.  She presents with a depth of clarity, love and down-to-earth wisdom.

9.  In order to qualify as a Journey Practitioner the mother attended a number of retreat style courses, which were all conducted outside of Hong Kong. Likewise with Biodanza. The mother has not completed the Biodanza course and hopes to do so once she has relocated to South Africa. The mother has described all of these courses as lifestyle commitments which she intends to pursue going forward. She says that she has developed emotionally, psychologically and spiritually as a result. She is passionate about the

... Awakening the Dreamer Changing the Dream initiative which is ‘to bring forth a socially just, environmentally friendly and spiritually fulfilled human presence on the planet’

10.  She says that she is responsible for introducing this to South Africa and for training 30 facilitators in the field. This is a voluntary project.

11.  The mother presently also works part time as a speech therapist and as an educational assistant at the boy’s school in Discovery Bay.

12.  The father also has a number of interests. In particular he trains for and takes part in “iron man” and triathlon competitions. He also runs two sports shops in Hong Kong, which seem to be an extension of his interest in fitness and healthy living. On occasion he travels outside of Hong Kong in order to take part in competitions.

13.  Unfortunately unhappy differences arose between the couple and according to the mother they separated in September 2007 but continued to live under the same roof. In February 2008 the mother moved out of the former matrimonial home. The boys remained there initially and the parties sorted out a rota for caring for them. In the initial separation agreement, the parties agreed joint custody and joint parental control. It was anticipated that the boys would spend one week (7 days) with each parent on a rolling basis. Later it seems that this evolved into an agreement that the mother would care for the boys when the father was flying for work and not in Hong Kong. Even now the underlying principle is that the boys will be based with their father when he is not flying and he is based in Hong Kong. Otherwise they are based with the mother. On the 26 February 2009 the father issued a petition based on one year separation with consent. The parties entered into mediation and eventually entered into comprehensive agreements with respect to all matters. On the 26 May 2009 the court made an order by consent with respect to the boys. This included an order for joint custody. In addition it was agreed by the parties as follows:

They [the parties] will consult on matters concerning the long term care, welfare and development of the children and specifically including but not limited to the following:

(i) In the event that one or both of the children fall ill whilst in one of the parent’s care then any decision in relation to treatment, medication and whether or not the child needs to stay home from school shall be made by the parent caring for the child or children at that time and such parent shall make all reasonable attempts to inform the other parent as soon as possible thereafter.

(ii) That the parties are to take the children to the same doctor from time to time as required and the Respondent is responsible for selecting the Dr and advising the Petitioner of the details of that doctor.

(iii) The parties will treat the children with homeopathic medications as required but if other medication is needed then each party can decide to use such medication preferably with the assistance of medical and/or pharmacist’s advice.

(iv) The parties are to consult and agree on which vitamins they are to give the children including which brand of vitamins.

(v) The parties will consult with each other as to the children’s psychological issues, if any, and will do all things to ensure that the children have appropriate recourse to a professional if needed.

(vi) The parties are to consult with each other as to which vaccinations if any that the children need from time to time.

(vii) The parties are to consult as to the children’s diet and are to do all things to ensure that it remains consistent in each home.

(viii) The parties shall consult with each other and agree on which school the children are to attend from time to time and both parties are to participate in enrolling the children in secondary school or any other school they may attend from time to time.

(ix) The parties are to both receive any school notices and newsletters as issued by the school and each party is to facilitate that arrangement with the school including providing the appropriate and irrevocable notice to the school.

(x) The parties are to consult with each other to ensure that they both attend parent and teacher meetings at the children’s school together where possible.

(xi) The parties are to consult with each other and agree about the children taking any time out of school.

(xii) The parties are to consult with each other and agree upon the extracurricular and sporting activities the children are to participate in.

(xiii) The parties agree to encourage and facilitate the children participating in approximately two or three extracurricular and sporting activities at a time and those activities are to be in accordance with the children’s wishes and the parties acknowledge that any more than this might be excessive and the parties will do all things to ensure the children are not overloaded in this regard.

(xiv) The parties will facilitate the children’s activities when they are in their respective care including take the children to various sports training and sporting matches.

(xv) The parties will inform each other on the various play arrangements each of them makes for the children and it is agreed that each party can make various play dates when the children are in their care.

(xvi) The parties will consult with each other as to the holidays they intend to take the children on and the Petitioner will let the Respondent know as soon as possible when he applies for leave.

14.  From this it is clear that the intention was that both parents would continue to be actively involved in every facet of the boy’s lives.

15.  Further it was agreed that as far as possible the boys were to split their time between both homes and that in order to do this that

(i) Immediately following receipt of the Petitioner’s Pilot roster, the Petitioner will forward a copy of it to the Respondent so she can allocate the days for the children to live with each of the parties with the Petitioner’s days to be no less than 15 days each month save for February when the Petitioner is to have no less than 14 days each month and the Petitioner’s time to be allocated in accordance with the nights when he is in Hong Kong except for the reserve days, as allocated on his Pilot’s roster.

(ii) The Respondent is to use her best endeavours to ensure the Petitioner has as much block time with the children each month taking into account her own commitments each month.

(iii) Each party will inform the children of the monthly arrangements as soon as the parties settle same.

(iv) In the event that the Respondent does not allocate the roster days as set out in Recital B(i) at least 1 week before the 1^st day of each month then the Petitioner is to allocate the days and he will use his best endeavours to give consideration to the Respondent’s commitments that month.

16.  It was ordered that the father was to have defined access of no less than 15 days per month save for February when he was to have 14 days. There were also further agreements with respect to holidays and other important dates such as Christmas.

17.  On this premise the mother was granted care and control and the father defined access. The mother also agreed and undertook as follows:

AND UPON the Respondent agreeing and undertaking to the Petitioner and to the Court to remain living in Hong Kong until T completes his primary schooling and the Respondent acknowledges that there is no agreement at present with the Petitioner to relocate the children’s habitual residence thereafter.

18.  The mother says that this agreement was a significant compromise on her part. She says that it was understood that she wanted to return to South Africa and that she had agreed to remain in Hong Kong until T had completed primary school somewhat reluctantly but did so in order that everyone had sufficient time to “heal”. She says that there was an agreement or at least an understanding that she would be returning to South Africa in due course. The father denies this.

19.  The father also says that he had been reluctant to concede sole care and control as

I did not want to forgo the ability to parent the children on a day to day basis as I have been doing this since the children’s birth and I was opposed to relinquishing this upon divorce.

20.  However the father acknowledged that notwithstanding this that he considered that this was an acceptable agreement.

21.  In addition the parties entered into a consent summons with respect to their finances which was made an order of the court on the 26 February 2010. The decree absolute was pronounced on the 12 March 2010.

22.  On the 10 November 2010 the mother issued a summons seeking to permanently remove the boys from Hong Kong in order to relocate back to South Africa with them. T completed his primary school education in the summer of 2010.   

The Law

23.  Both parties initially referred me to the same principles on relocation namely the line of authorities which began with the English case Poel v Poel [1970] 1 WLR and continued with Payne v Payne [2001] EWCA Civ 166. It is true to say that this line of authority has been consistently upheld in the Hong Kong courts, most recently by the Court of Appeal in SMM v TWM (Child Relocation) [2010] HKLRD 37. Both parties have referred to all three cases in their submissions. It is useful to note the comments made by Cheung JA at paragraph 25 - 28 of the judgment, SMM v TWM (Child Relocation) [2010] HKLRD 37, where he states as follows:

Post-1997 use of precedents

25. After 1997, the English authorities are no longer binding in Hong Kong but they remain persuasive authorities.  It has been said that it is of the greatest importance that the courts in Hong Kong should continue to derive assistance from overseas jurisprudence: per Li CJ in Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117.

26. The Children Act 1989 abolished “custody” and “access” orders and replaced them with “residence” and “contact” orders.  The Act stated that notwithstanding separation or divorce each parent continues to have parental responsibility even if a residence order has been made in favour of one of them.

27. Hong Kong has continued to use the terms of “custody” and “access” under s.10 of the Guardianship of Minors Ordinance (Cap.13) (GMO) and the term “custody” in s.19 of the Matrimonial Proceedings and Property Ordinance (Cap. 192) (MPPO).  It is clear, however, that the family courts in Hong Kong have in line with the modern approach granted joint custodial orders which emphasised the continuation of parental responsibilities and judges in Hong Kong have also adopted the welfare checklist in s.1(3) of the Children’s Act: see, for example, Judge Bruno Chan in P v P (Children: Custody) [2006] 2 HKFLR 305.

28. In my view since our matrimonial jurisdiction has followed that of England because of the historical connection, Hong Kong can and should draw from the wealth of experience of the English family courts to nurture and supplement the development of our own family jurisdiction on matters concerning principles which are not dependent exclusively on legislation.  The Payne v Payne principles should be applied and adopted in Hong Kong as well.      

24.  The issue of relocation continues to engender fierce debate. I referred to this recently in a case concerning the relocation of a mother and her children to Beijing. (Please see YY v CHOA (Removal), FCMC 7598 of 2010 unreported).

25.  Ms Rattigan, for the father, has also made mention of the rising tide of criticism levelled against Payne in her skeleton argument and in particular to what is perceived as an unwarranted emphasis on the impact of an order refusing relocation on the parent wishing to relocate. In other words, in the circumstances of this case, an emphasis on the effect that a refusal will have on the mother, without any consideration of the effect that it would also have on the father and his relationship with the boys. Referring to an article entitled Mounting Support for a Review of Poel and Payne, 25 June 2010 which quoted from Wall LJ in Re D (BD and AID, [2010] EWCA Civ 50 she says:

“There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent”

26.  Reference is also made to the continuing research undertaken in this area.

27.  It is against this background that the Court of Appeal in England handed down its decision in MK v CK [2011] EWCA Civ 793 in July 2011.

28.  In this case it was found that the parties had a genuine shared care arrangement, in that the father cared for the children without assistance for five nights out of every fourteen and the mother for the remaining 9 nights. The mother had the assistance of a Nanny. Both parents worked, but it was found that they both worked less than full time in order to accommodate the children, who were quite young (5 and 2 years old at the time of the judgement). The mother was initially given leave to relocate home to Canada, which was subsequently overturned on appeal.

29.  In his judgment Thorpe LJ highlights the fact that the judgement in Payne

... is posited on the premise that the applicant is the primary carer.

30.  He goes on to state at paragraph 46  

46. Thus the survival of the authority of Poel into this century, in my judgment depends crucially upon the primacy of the applicant’s care.  As Ms Eaton put it, if she is supplying so much she must be supported in her task precisely because the children are so dependent on her stability and wellbeing.  Once the care is shared there is not the same dependency and the role of each parent may be equally important.  The judgments in Poel consider only the position of the primary carer and an earlier position where there is a pending contest as to who should be the primary carer.  Payne does not anywhere consider what should be the court’s approach to an application where there is no primary carer.

…

And further at paragraph 56 – 59

56. Finally I must deal with the authority which I consider the judge should have applied namely Re Y.  Having cited Payne and the President’s guidance at paragraph 85, Hedley J continued:

“[14] Now, the court clearly contemplates two different states of affairs. The one, the more and common and in some ways the more obvious, is where the child is clearly living with one parent, and it is that parent that wishes to leave the jurisdiction, for whatever reason. The other, and much less common state of affairs, is where that does not exist and either there is a real issue about where the child should live, or there is in place an arrangement which demonstrates that the child’s home is equally with both parents. In those circumstances, which are the ones that apply in this case, many of the factors to which the court drew attention in Payne v Payne [2001] EWCA Civ 166, [2001] Fam 473, [2001] 1 FLR 1052 whilst relevant may carry less weight than otherwise they commonly do.

[15] The father does not have an application for a residence order in this case, but it was raised only in response to the mother’s application for permission to remove, and the father’s actual proposal is for a continuation of the present position.

[16] This case accordingly falls outside the main run of cases that one encounters where this problem is raised, and certainly within my own experience is unique.  What it seems to me I must do is to remind myself of the opening provisions of the Children Act 1989.  Section 1(1) says that when a court determines any question with respect to the upbringing of a child, the child’s welfare shall be the court’s paramount consideration, and in considering these issues I have to take a number of matters into account as required by s 1(3).  It seems to me that of those matters, the ones that are important in this case are the educational and emotional needs of Y, the likely effect on him of any change in his circumstances, and his age and background so far as his life is presently concerned.  It seems to me that I need to remind myself that the welfare of this child is the lodestar by which the court at the end of the day is guided.”

57. I fully concur with the reasoning and conclusion of Hedley J.  What is significant is not the label “shared residence” because we see cases in which for a particular reason the label is attached to what is no more than a conventional contact order.  What is significant is the practical arrangements for sharing the burden of care between two equally committed carers.  Where each is providing a more or less equal proportion and one seeks to relocate externally then I am clear that the approach which I suggested in paragraph 40 in Payne v. Payne should not be utilised.  The judge should rather exercise his discretion to grant or refuse by applying the statutory checklist in section 1(3) of the Children Act 1989.

31.  Lady Justice Black took a slightly different approach in her analysis. She said inter alia as follows referring as she did to Dame Elizabeth Butler Sloss's guidance in Payne (please see paragraph 34    below)

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.

142. Whilst this is the only truly inescapable principle in the jurisprudence, that does not mean that everything else – the valuable guidance – can be ignored.  It must be heeded for all the reasons that Moore-Bick LJ gives but as guidance not as rigid principle or so as to dictate a particular outcome in a sphere of law where the facts of individual cases are so infinitely variable.

143.     Furthermore, the effect of the guidance must not be overstated.  Even where the case concerns a true primary carer, there is no presumption that the reasonable relocation plans of that carer will be facilitated unless there is some compelling reason to the contrary, nor any similar presumption however it may be expressed.  Thorpe LJ said so in terms in Payne and it is not appropriate, therefore, to isolate other sentences from his judgment, such as the final sentence of paragraph 26 (“Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children”) for re-elevation to a status akin to that of a determinative presumption.  It is doubly inappropriate when one bears in mind that the judgments in Payne must be read as a whole, with proper weight given to what the then President said.  She said that she wished to reformulate the principles since they may have been expressed from time to time in too rigid terms with the word ‘presumption’ over-emphasising one element of the approach (paragraph 82) whereas the criteria in s 1 Children Act govern the application (paragraph 83) and there is no presumption in favour of the applicant (paragraph 84).  Dame Elizabeth referred, of course, to the effect on the parent with residence (paragraphs 83 and 84) but she also stressed that the relationship with the other parent is highly relevant and that there are many other factors which may arise in an individual case (paragraph 84).  I detect in her discussion of the factors and in her summary at paragraph 85 no weighting in favour of any particular factor.  She said that the reasonable proposals of the parent with a residence order wishing to live abroad carry “great weight” whereas the effect on the child of denying contact with the other parent is “very important” but I do not infer from that phraseology any loading in favour of the reasonable proposals as opposed to the effect of the loss of contact.

144. Payne therefore 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.  I do not see Hedley J’s decision in Re Y as representative of a different line of authority from Payne, applicable where the child’s care is shared between the parents as opposed to undertaken by one primary carer; I see it as a decision within the framework of which Payne is part.  It exemplifies how the weight attached to the relevant factors alters depending upon the facts of the case.

32.  Thus it seems that the approach taken by Thorpe LJ is rather different from that adopted by Black LJ. Lord Justice Thorpe seems to have identified Re: Y as being the first in a different line of authority to Payne, whereas Black LJ sees Re Y as being only one case in a whole range of different cases dealing with relocation. She sees Re Y as simply representing one end of the relocation spectrum.

33.  In either event it seems clear that both of the Court Appeal Judges acknowledge that in the event that there is not one primary carer and the day to day care of the children is genuinely shared between two committed parents, that there should be a difference of emphasis or approach when considering the case. I agree. I am nevertheless assisted in this, as was Hedley J in Re: Y, by the guidance provided by Dame Butler-Sloss in Payne. Dame Butler-Sloss said as follows:    

In summary I would suggest that the following considerations should be in the forefront of the mind of a judge trying one of these difficult cases.   They are not and could not be exclusive of the other important matters which arise in the individual case to be decided.   All the relevant factors need to be considered, including the points I make below, so far as they are relevant, and weighed in the balance.   The points I make are obvious but in view of the arguments presented to us in this case, it may be worthwhile to repeat them.

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

(b) There is no presumption created by section 13(1)(b) in favour of the applicant parent.

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

(d) 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.

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

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

(g) The opportunity for continuing contact between the child and the parent left behind may be very significant.

All the above observations have been made on the premise that the question of residence is not a live issue.  If, however, there is a real dispute as to which parent should be granted a residence order, and the decision as to which parent is the more suitable is finely balanced, the future plans of each parent for the child are clearly relevant.  If one parent intends to set up home in another country and remove the child from school, surroundings and the other parent and his family, it may in some cases be an important factor to weigh in the balance. But in a case where the decision as to residence is clear as the judge in this case clearly thought it was, the plans for removal from the jurisdiction would not be likely to be significant in the decision over residence.  The mother in this case already had a residence order and the judge’s decision on residence was not an issue before this court.

34.  Although Hong Kong does not have the benefit of a Children Act, it seems to me that this approach is eminently sensible and in keeping with the provisions of our own Guardianship of Minors Ordinance, Cap 13 which states that the welfare of the child is the court’s paramount consideration.

Discussion

35.  I must now turn to consider the issues, the law and the parties evidence as set out in their affidavits and as given orally by them during the hearing.  I also heard evidence from Mr M, the social welfare officer who filed two reports dated the 8 March 2011 and the 13 June 2011 respectively. I have also been referred to the two reports received from South Africa dated the 22 March 2011 and the 22 June 2011 respectively.

Character of the parties

36.  In all cases concerning children it is important for the judge hearing the case to see the parties in the witness box in order that the judge may form some view of them for him or herself. In this case it should also be noted that the mother began by being represented but ended up conducting the trial herself. The father had counsel.

37.  The mother came across as being a very intelligent and articulate woman. Although representing herself she was extremely well prepared and conducted the case better than many lawyers would have done. She was impressive in her research, preparation, delivery and presentation. She seems very determined to leave Hong Kong. Her interests could perhaps be best described as being “alternative” and she came across as someone who was searching for a better way to live and was passionate about the things she believed in. I have no doubt that being a “mother” is extremely important to her and that she is a very good Mom to her boys.

38.  The father came across as being more main stream He seemed very focussed – someone who liked to make a plan and to stick to it. He was equally determined that the boys should remain in Hong Kong. He seemed very conscious, quite rightly, of the increasing importance of his role as the boys approach puberty. He emphasised his interest in the boys sporting endeavours. I have no doubt at all that he is also a very good Dad and that together the parties have made a very good parenting team.

39.  Both describe difficulties in their relationship of late. I think that is hardly surprising given the stresses and strains of this litigation and possibly other difficulties caused by the formation of new relationships outside their own.

Could either parent be described as the primary carer of the children in the classic sense of that term?

40.  It is true, as Thorpe JA has said, that in most cases that come before the courts, whether in Hong Kong or England and Wales, there is normally one clearly defined primary carer of the children. The children are normally based with one parent who has care and control. That parent will probably have the children with them for more of the time and that parent will be responsible for most of the day to day decision making.

41.  As I have said much of this case was spent trying to determine if either parent could be described as the “primary carer”. The mother felt strongly that she was that person. She said that she was the parent who was consistently available for the boys. She said that she did not work full time because she wanted to be fully available for them. She said that she was responsible for all facets of their lives including making medical appointments and dealing with any psychological or emotional issues that they might have. She said that her life revolved around them. She maintains that this is why she is also the parent with care and control. She said that even if the boys were not in her care that she would generally attend their sporting and other events, whereas the same could not be said of the father.

42.  In summary she put it thus in her third affidavit of the 9 May 2011

22. I do not merely hold the “title” of care and control as it is a daily responsibility.  It does not merely involve the list of matters in Recital A items (i) – (xvi) of the order.  I hold the well being of the boys in me every single moment of every single day whether they are sleeping in my house or not.  These include, but are not limited to seeing them and checking in with them every morning before school starts and every afternoon when school ends and checking them at break or lunchtime; dealing with playground incidents with C and his friends on several occasions; ensuring they have all the school uniform and sport items needed, taking warm clothes, snacks and drinks to practices; monitoring their health and energy through diet and supplements especially C who does not eat fruit or vegetables, dealing with lice and worms; dealing with friendship difficulties and anxiety; organising activities and watching activities; doing homework, establishing routines; keep stretching their reading skills; checking with them emotionally, listening and creating space for them to share emotional issues; keeping teachers informed of emotional challenges happening with boys; checking in with teacher regularly to see how the boys are doing; attending parenting courses and talks to keep aware of new ideas of how to manage challenges; limiting influence of technology and television in daily lives; nurturing spiritual practices and beliefs, model and talk about values; using skills to support emotional processing in challenging times; physical care, bathing, haircuts and the like; choosing products that are not harmful to the boys; enrolling for new sports; filling in their forms; taking boys to dentist for checkups and following up on referrals from dentist and doctors; participating in and preparing for school functions and birthdays at school and the list could go on.  Basically my role in the boys’ lives did not change following the custody order.

As I have said there is no doubt that she is a good Mom.

43.  The difficulty I have however is that, even on the mother’s own case, the father has had the care of the children for significant periods of time. On the father’s case he says that in 2008 he had the care of the children for 53% of the time, 45% of the time in 2009 and 48% of the time in 2010.

44.  During the trial both sides went to great lengths to show how much time each spent with the boys. What soon became clear as a result of that process was that each parent did indeed spent a considerable amount of time with them on a day to day basis. The father is able to do this as he is able to dedicate time to the boys when he is at home for several days at a time inbetween flights.     

45.  The mother says that in any event this is only sustainable because she makes it work. In particular she arranges the monthly schedule once she receives the father’s roster each month. She also points to the fact that the father relies on the assistance of N – the parties’ domestic helper who has been with the family since shortly after T’s birth. However I have also noted that N comes to the mother’s home for three hours every afternoon when the children are with her and that she also assists both parties in the smooth transition between the two homes. In that sense both parties rely on her help.

46.  The father maintains that he is a fully involved parent. He describes his time with the boys as follows:

35. On the 15 days per month the boys are with me my weekly schedule is a fairly set routine.  I start my day with exercise at 5am in the morning before the boys wake.  I am back at home for the boys waking up and I get the boys ready for school each morning and we have breakfast together.  I then take the boys to school by 8:25am.  I then go to [the shop] at Discovery Bay, which is a 10 minutes walk from the boys’ school.  I employee 3 staff to work in the Discovery Bay store and I spend an hour working at that store.  I then take the 10:10am ferry from Discovery Bay to Central and arrive at [the shop] at Wyndham Street at 11am.  I have 2 staff working in this store.  I then spend a few hours working at the store with them and then take the 2pm ferry from Central to Discovery Bay to collect the boys from school at 3pm.  Every Wednesday I will work a full day in the Discovery Bay store whilst the boys are at school.

36. There are the odd occasions where something comes up at the last minute which means I am unable to pick the boys up of an afternoon after school but in the last 3 years I estimate that this is probably been only about 7 occasions.  If something does come up on those occasions then I have arranged for N to collect the boys from school.  It is usually a business related meeting that prevents me from being at school.  Overall, I structure my working hours in the stores around the boys’ school schedule which has proved to work very well.  My employees at the stores are also family orientated and they understand my working schedule revolves around T and C.

37. In T’s [the respondent’s] affidavit at paragraph 9 she makes comment on my flying schedule, my sport commitments and the time I spend at the sport store suggesting that this is consuming my time and that I do not spend my allocated time or sufficient time with the boys.  This is not correct and I am able to answer to each of the comments T makes.

47.  All in all it seems to me that the boys are extremely lucky to have two such dedicated parents. I accept that neither parent is a primary carer of the children in the classic sense of that term given that the boys have the benefit of spending significant periods of time with both of them.

48.  Given this, it seems to me that this is a case of genuine shared care if not absolutely equal care and one which the boys have clearly benefited from greatly. They are both doing well at school and excel academically and in the sporting arena. They are a credit to both of their parents.

49.  Although the mother makes much of being the primary carer I have also taken on board the fact that she has been able to develop other interests and have other relationships of her own away from the boys, which the father has supported and which have also necessitated regular travel away from Hong Kong. She has been able to do this because the boys are with their father for significant periods of time. Likewise the father has also developed his own interests which sometimes take him out of Hong Kong. The boys are with their mother during those times. The father lives with his partner, who is also South African and the mother is also in a relationship. She says that this does not influence her decision to return to South Africa. The mother has also had other relationships following the breakdown of the marriage, one of which was a long distance relationship.  

Given that should permission be given for the boys to leave Hong Kong in order to relocate to South Africa with their Mother?

What are the mother’s proposals? Are these reasonable in all of the circumstances of this case?

Plettenberg Bay, South Africa

50.  The mother wishes to relocate to Plettenberg Bay in South Africa. This is a town popular with tourists and is situated on the Garden route on the Western Cape.

Access proposals

51.  Much of the trial was taken up with issues pertaining to access. The mother proposed that the father come to South Africa at least once a month, when he had a block of five days or more available from work, in order to see the boys. She suggested that he could stay with her – something that the father said was not feasible. The mother sets out a number of proposals in her documentation. In essence she suggests that the father come to South Africa as often as possible and at least once per month. She also suggests regular skype and telephone access. In addition to the monthly access she proposes regular access to the boys over their school holidays – either in Hong Kong or South Africa or elsewhere. She suggests that the father have access for the three weeks over the Easter holidays, (end of March/April), for three and a half weeks over the summer (end of June/July) and for half of their Christmas holidays which would be a further three weeks. This is 9 ½ weeks in all.         

52.  The father says that it would simply not be possible for him to do as the mother suggests. Although, as a pilot he has blocks of time off between flights, these would normally be after a long haul flight. The mother’s proposal would mean that he would have to leave Hong Kong immediately after he has returned from a long haul flight for work. The flight to Johannesburg is also long haul – approximately 13 hours. He would then have to make a connecting flight to George from Johannesburg. There was some debate about the length of time this would take – but suffice it to say that it could take up to a couple of hours for him to make that connection. The flight George would take a further 2 – 3 hours. He would then need to drive down the Garden Route to Plettenberg Bay. The whole journey would take a long time to complete. The father would be jet lagged. The boys may very well be at school once he arrived. He has no where to stay. He would then only have a very short amount of time before he would be obliged to return to Hong Kong for work. He would likely to be jet lagged and exhausted once he got back, when he would then be obliged to captain a long haul flight for his employer. He put it thus during the trial      

“I would not be able to make it monthly to South Africa as T proposes as the journey is impossible to do in 5 days. I would have 1 full day in Plettenburg Bay after a 20 hour journey and a minimum time zone change of 6 hours. The boys could be at school this day with sporting activities so in fact it could possible be around 2 hours one-on-one time with them.

It is more likely that I could make it to South Africa 2 to 3 times a year.  This to me is insufficient time to have the same relationship as I have with the boys being a hands on involved parent in their lives.” [P2/19/640]

53.  The impression given by the mother during cross examination was that she thought that the father was just being difficult and that he would be able to make this work if he really wanted to. She pointed out that if the father was able to travel to participate in iron man competitions then he should be able to travel to see his children. I do not agree. I think it will be virtually impossible for the father to have access to the boys on the regular basis envisaged by the mother. Given the fact that he plays such a significant role in their lives at present it seems to me that this would not be in their best interest for him to be removed from their day to day experience in this way. The father fears that it would have a negative effect on the bond that he has with the boys and could fracture a future relationship. Whilst I accept, as the mother points out, that parents are able to maintain meaningful relationships with children notwithstanding the fact that they live long distances away from each other, in the circumstances of this particular case it seems to me that that at best the distance could alter the relationship very significantly.

54.  I also accept that there might be difficulties with respect to the boy’s school holidays in that the father would not be able to guarantee that he could have that time off. Consequently even if the boys came to Hong Kong for those periods of time the chances are that he would only be able to spend a limited amount of time with them. It was not clear to me how this would actually work in practice. The father also complained that he had had difficulties contacting the boys in the past when they have been in South Africa and that skype contact in particular could be problematic. I accept this has been a problem in the past and could be a problem in the future.   

Accommodation

55.  The mother intends in the first instance to stay with her closest friend who lives in the area. She then hopes to buy a small holding, with a main house and other chalets, which she then intends to rent out in order to provide an additional income and where she says the father can stay when he visits the boys. She has provided details of properties that she considers suitable in her affidavits. In her third affidavit she says that her mother and stepfather intend to join her on the small holding and the impression is that they will live as a three generational unit. In her closing submission she says that the grandparents will definitely join her. The father is doubtful about this and says that he does not believe that they could afford to do so. In any event the mother says that she hopes to live off the land as much as possible. Originally she wanted to develop an eco village – but was later told by the local authority that this was not possible in this part of South Africa. 

56.  The father has significant concerns with respect to the mother’s plans. I believe that he is justified in this. The mother has never been involved in a project like this before and certainly does not have a background which would support it. Certainly on looking at the properties themselves one is struck by how isolated some of them seem. He does not believe that this is a well thought out proposal. In particular he says that the mother has a track record of forming passions for certain things in an attempt to find fulfilment or happiness. He believes that this is simply the latest one. The father is also concerned, and again with some justification it seems to me about the family’s safety. He said that he would not rest easy knowing that the mother, as a single white woman was living on a small holding, with the boys, in a country which has a very significant security problem. The mother says that she would never consciously put herself and the boys in danger. I accept that this is her intention. However she has not lived in South Africa on a permanent basis for a long time. I accept in the circumstances that the father’s concerns are valid. Indeed I share his concerns.    

School and sporting opportunities

57.  The mother wishes the boys to attend H school in Knysa. According to the prospectus about 65 pupils come in to this school each day from Plettenberg Bay by bus. This is about a 40 minute ride. The school itself is relatively new with approximately 400 pupils ranging in age from 4 – 18 years. It seems quite progressive in its outlook.

58.  In comparison if the boys remained in Hong Kong they would either continue to be educated on Discovery Bay or they could alternatively move to an ESF school for their senior years.

59.  Both options have something to recommend them. Both seem to be acceptable alternatives. If the boys moved they would have to adapt to a new curriculum which would include Afrikaans. Mandarin would no longer be an option.

60.  The mother has suggested that the boys would have more sporting opportunities if they went to South Africa. I do not necessarily accept this. H is quite small making competitive sport somewhat difficult within the school itself. There are many sporting opportunities for children in Hong Kong – especially in some of the areas that the boys have shown an aptitude – e.g. rugby, soccer, hockey and cricket. These opportunities exist both within the school system and also at club and national level. Although I have no doubt that the boys would benefit from the sporting opportunities in South Africa, I do not think it can be said that very similar opportunities would not also exist for them in Hong Kong.          

Work and lifestyle choices

61.  The mother’s choice not to become more financially independent is a source of some friction between the parties. If she is allowed to relocate she says that

The potential for me to work is available but work and being available as a mother need to be balanced.  There are many possibilities for me, which include but are not limited to:- Private speech therapy for children in schools and with children under 5 during school hours; start a Journey for Schools program in the Garden Route that has already been piloted in Cape Town and is income generating called Conscious Classroom; Generation Wake Up presentations in schools; awakening the Dreamer symposiums/trainings in institutions and organizations; workshops for children and parents related to emotional and spiritual well being; and expanding my mother’s business in the Garden Route area earning a basic plus commission.  I already have a letter of appointment for the latter and can start with that.

62.  It seems then that if the mother moves to South Africa that she would work part time and continue to pursue her other passions. She intends to continue to rely, certainly in part, on the father for financial support for both herself and the boys. This would remain the case if she remained in Hong Kong.

Other areas of concern:

Crime

63.  The father has expressed very real concern about the level of violence in South Africa. He has referred in his affidavits to a number of newspaper articles and to statistics produced by the United Nations Office on Drugs and Crime. The mother has tried to play down the level of violence in this part of South Africa and says that it is mainly confined to the townships. While that may or may not be the case there can be no doubt at all that South Africa is a much more dangerous place to live than Hong Kong and that there would be some risks associated with any intended move. The father says that this is not an acceptable risk to take. I tend to agree.

Pollution and air quality

64.  The mother says that this has to be looked at in the round and that conversely Hong Kong is much more polluted that South Africa and that this is an ongoing threat to the children’s health and general well being. Although I accept that air quality and other environmental issues are a continuing problem in Hong Kong, it seems that this is really an attempt to compare apples with oranges. They are two different problems. The fact that there is an air quality problem in Hong Kong does not detract from the magnitude of the security crises in South Africa and the threat that that poses.

Lack of opportunity and displacement

65.  The father is concerned about the lack of opportunity longer term for the boys in South Africa and has referred to the number of White South Africans leaving the country. The mother has countered this by highlighting the need for them to identify more strongly with their roots and national heritage. She has also suggested that they may move again away from South Africa for their tertiary education. Interestingly in the first social welfare report the mother is also reported as saying that the boys should be allowed to relocate to South Africa and that the parties could then reconsider their options once the boys turned 14 years of age. If the boys wanted to return to Hong Kong then they could do so then. Although I appreciate the mother’s wish for the boys to identify more strongly with their roots, I accept the father’s concerns about the opportunities presently available for them if they decided to remain in South Africa longer term.

Other options  

66.  The mother says repeatedly that she had always intended to return to South Africa and that it was never her wish to remain in Hong Kong for so long. Although I accept that up to a point the fact remains that the mother has lived here for over 15 years and that the boys have been raised here.

67.  The father does not accept that the mother has always wanted to return to South Africa and has pointed out that they also considered moving to New Zealand or Australia. The mother says herself that had the parties remained married that they would probably have based themselves in Phuket with the father commuting between Hong Kong and Thailand.

68.  The father says, and I believe him, that for him Hong Kong is now home. He has no plans to move. He is happy here. His life is here. This is not a case of an ex patriate living in Hong Kong for a short period of time, for whom Hong Kong can never be home.

Are the proposals genuine or are they made with the intent of bringing contact between father and sons to an end?

69.  Although I accept that the mother’s proposals are genuine, it is also clear that the mother is not happy with the current care arrangement and that she feels that it is not in the boys best interests to move between two homes. She complains that the boys are stressed and that the father is hostile towards her. Ms Rattigan summarizes the mother’s position as follows:

The Mother has complained in her evidence that this arrangement suits no-one except the Father.  She says she does not like it all and she also attempts to allege that the boys have not been coping well with this arrangement.  This is clearly in an attempt to bolster her case, Mr. M’s independent evidence showed that this was not the case as the boys were in fact very happy with the present arrangement.  When questioned as to whether or not he got any impression that the present arrangement was upsetting the boys his response was “From talking with them, from the talking between them and me I did not have such observation.  From the talking between them and me and from the observation, I did not have that observation” [T/20/J-L].

70.  Whilst I accept that the mother’s proposals are not made with the intention of bringing contact between father and the boys to an end, it seems to me that at best the father’s time with the boys will be very limited if the relocation is permitted. I also accept the point made by Ms Rattigan for the father that the mother seems unhappy with the present arrangement. She complains about not seeing the boys every day. I believe that she would welcome the possibility of becoming the boy’s primary carer. Whilst acknowledging the importance of the boys having an ongoing relationship with their father she clearly does not believe that this should be to the detriment of her own relationship with the boys or of the time that she is able to spend with them.        

Impact on the mother if the relocation is refused

71.  Although the Mother has filed no psychiatric or psychological evidence I accept that she would be devastated if her application was ultimately refused. She says that she is unhappy and that she feels trapped in Hong Kong. I accept that she genuinely feels these things.  

Impact on the father if the relocation is granted

72.  Likewise I also accept that if the relocation is granted that the father would be equally devastated. Again he has not filed any psychiatric or psychological evidence in support of what he says.  

The opportunity for continuing contact between the children and the left behind parent

73.  It is this aspect of the case that causes me the most concern in that I am not convinced that the boys would be able to see their father on a regular basis if the application were granted. Given the present circumstances I do not believe that this would be in their best interests. It has been suggested that this might be counterbalanced by the boys having regular contact with their extended family. In reality it seems that this would mean them having regular contact with the maternal Grandmother and stepfather and the mother’s brother and his family. I accept that there is a possibility that they may also be able to see a bit more of their paternal Grandmother in the short term. I accept that she may move in due course. They would not see the father’s other family any more regularly. I do not believe that this would sufficiently provide a counterbalance to the loss of the Father’s involvement in the day to day life of the boys. 

Social Welfare Reports

74.  Recommendations made to the court in social welfare reports, although not binding are persuasive.

75.  Mr M filed two reports. In the first report dated the 8 March 2011 he did not make any recommendation pending receipt of the International Social Investigation Report from South Africa. However he did report on the boys views on the matter.

76.  With respect to T, he reported that

On this permanent removal matter, he expresses to have been facing a very big struggle in his heart and being torn on his loyalty between his father and his mother.  He understands that if he goes to South Africa, both he and his father will be very sad and heartbroken for not being able to be together as often as they can have now.  On the other hand, if he stays in Hong Kong, his mother will not leave Hong Kong because she loves him so much but she will be very sad.  He expresses that the worst thing about divorce is not seeing the parents together, and he feels sad when the parents fight.  He wants the whole family together and does not want his parents to separate.  Also, if he moves to South Africa, he will not be able to see his good friends.

77.  C said as follows:

C says that he likes to go to South Africa as he can see his maternal grandmother and cousins. However, he does not like to go to the school there because it is too small and he knows nobody there.  He expresses that he will feel sad if he goes there because he will lose his good friends in Hong Kong; his father will not be happy because his father will not go there, and C cannot see his father as often as he has been.  He also feels sad if he stays in Hong Kong because his mother will not go to South Africa and she will not be happy.  He wants the whole family together that he can see each other and he wishes that his parents did not divorce.

78.  Mr M observed that

The children have developed very strong bonding and solid relationship with both parents.

79.  In the second report dated the 13 June 2011 he reported T’s views as follows:

He maintains that both parents are loving, caring and supportive, and have treated the children fairly.  He loves his parents equally.  He expresses that he has no preference to live in Hong Kong or to live in South Africa but he tends to lean on the side to live in Hong Kong.  It is because if he remains living in Hong Kong, his mother will not leave him and she will not go to South Africa by herself alone.  Therefore, all the family members will be together and he will be able to see and to be with both his father and mother members will be together and he will be able to see and to be with both his father and mother all the time he wants.  On the other hand, moving to South Africa will mean, only his mother, C and him are together as his father will be in Hong Kong.  Therefore, he will not be able to see and to be with his father as often as he has been.

80.  With respect to C he said

He maintains that his parents are both very kind to him.  He expresses that he has no preference whether to live in Hong Kong or South Africa.  However, he said “if we don’t go to South Africa, my mom will stay, because mom won’t leave without us”.  In this connection, he tends to prefer to live in Hong Kong because he can see both his father and mother together all the time.  If he is to move to South Africa, he will not be able to see his father as often as he has been.

81.  He concluded that weight should be given to the children’s own views as expressed above – i.e. that the removal application should not be granted. I clarified this with him in the witness box and he confirmed that although quite evenly balanced that the children would prefer to stay in Hong Kong so that they could continue to see a lot of both parents and that he was inclined to support them in this.

82.  Commenting on the boy’s relationship with their father he made the following comment in the witness box: 

Language wise, the boys expressed that if they could not see their father at any time just like what is happening now, they would be very, very sad.  But from extra language observations, non-verbal observations, it could be observed that the boys and the father had had close contact.  From their body language, from the feelings showed by their eyes, from non-verbal things, I could also see that actually the boys also had great trust in their father.

It took place in February 2011.  I have had a deep impression of this when at that time the boys were playing bowling with the father.  The boys very often hugged their father, and the father also held the boys – also hugged the boys.  There were two occasions for the elder boy and the younger boy.  They stood on the – the two boys stood on chairs respectively.  At separate times, the two boys stood on chairs.  They jumped toward the father without prior discussion.  You could see from the feelings shown by their eyes – they have eye contact.  Then the boy jumped toward the father.  The father spontaneously hugged – held the boy tight.  In this situation, had there not been any trust, the boy would not jump toward the father, and the father would not have held the child tight immediately.  At that time they were playing together.

The boys believed that the father would definitely go to South Africa to visit them, but the boys were very much worried that if they went there, they might not be able to see their father always, all the time, just like they are doing now, because now I could see the present relationship between the father and the child, and I could see that if they relocated, their relationship would be changed and would be affected.  The children were also very much worried about that.

83.  Social Welfare Officers are often called the eyes and ears of the court. In this instance Mr M’s observations were extremely helpful. It confirmed that the boys do indeed have a very close relationship with their father.

84.  I have also had the benefit of reading the two reports received from a social worker attached to Child Welfare, South Africa for Plettenberg Bay. The first report was available for the first tranche of the trial. The second was forwarded to the court on the 26 July. Both reports provide useful background information. Not surprisingly the comments made by the people interviewed in those reports are largely self serving and depend on whether they are supporting the mother or father. None of them were called as witnesses and I do not intend to attach very much weight to what these parties have said.

85.  In commenting on the second report Mr M said:

Having considered the content of this Supplementary Report, the undersigned, i.e. the Investigating Social Work Officer of the above case, is inclined to maintain his recommendation as mentioned in paragraph 23 of his Further Social Investigation Report dated 13-06-2011, i.e. “it is in the best interest of the children for the Court to give weight to the views and wishes the children have expressed.”

86.  I accept the recommendation made by Mr M in this respect.

Conclusion on relocation

87.  Given all of the competing factors set out above it seems to me that it will not be in the boy’s best interests for this application to be allowed. I appreciate that this will be a significant blow to the mother. But I am also painfully aware that at the end of the day my one abiding concern must be for the welfare of the boys. It seems to me that in all of the circumstances of this particular case that their welfare would be better served by them remaining in Hong Kong.

How should the children’s time be allocated between their parents once the relocation issue has been determined?

88.  The father wishes the status quo to be maintained. The mother has indicated that as far as she is concerned the present situation is not in any event working as well as it might. I will therefore give liberty to both parties to apply to vary the present care arrangements if agreement on these issues does not prove possible. Notwithstanding the rather difficult nature of this type of litigation I would also strongly recommend that the parties consider returning to mediation to discuss these points prior to embarking on another round of litigation.

89.  Given that this is a child related matter I will make an order nisi that there shall be no order as to costs, to be made absolute at the expiration of 14 days. There shall be certificate for counsel.