TWAMA v. T,DJ-PF

FCMC 13094/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 13094 OF 2012

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J U D G M E N T
(Relocation, Custody, care and control and access)

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Introduction

1. This is an application by a respondent father 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 Geneva, Switzerland. The children, both boys are now aged 11 and 9 years. The mother opposes the father’s application. She wishes for the children to remain in Hong Kong with her.

2. This case concerns a French ex patriate couple. The husband holds a senior position with a well known French corporate and the wife works in the design field. During the marriage the parties were seconded to Hong Kong and then to Singapore and subsequently back to Hong Kong again. They are true ex pats in the sense that they lived outside of their home country and are used to being seconded to different countries for fairly limited periods of time. They have also benefitted from a traditional ex pat package which included a reasonably generous housing and education allowance. The boys presently attend a well known international school in Hong Kong.   

3. From the father’s perspective this is really a very straightforward matter. Put simply he says that given that his company will only continue to pay for the children’s education if they move with him to his new place of work in Geneva, that there is really no choice but for the children to move with him there. He has said that the wife could also relocate with him to Geneva, although I was not taken to any formal proposals in that respect. As Switzerland is not part of the European Union it is accepted that both parties would need visas in order to live and work there. He is also concerned that as the children are in Hong Kong on a dependents visa and that this status may alter once he leaves. He fears losing contact with the children if they are not allowed to relocate with him.

4. The mother for her part says that given that she and the husband are about to divorce, it is not feasible for her to move each and every time the father is required to move country. She says that she and the boys are settled in Hong Kong and that she intends to remain in the territory for the foreseeable future. She has recently started a full time job on local terms and intends to employ a domestic helper to assist her with the day to day care of the boys. She points out that the husband is not returning “home”, and that Switzerland is not France. Perhaps more importantly, as the care taking parent she maintains that the children should live with her. The mother also fears that she will lose contact with the boys if they are permitted to relocate with their father to Geneva. 

5. In terms of formal applications before the court – the father now seeks an order to relocate to Geneva, Switzerland with the boys. Originally he sought an order to relocate to France. He also asks to vary the previous order for shared care and asks for sole care and control. He does not wish to upset the order dated the 10 June 2013 for joint custody. The mother for her part opposes the relocation and points out that the practical arrangements for the children’s care will of necessity need to be changed if the relocation is permitted.

What are the main issues to be considered?

1)    Should permission be given for the children to leave Hong Kong in order to relocate to Geneva, Switzerland with their father?

2)    What orders should be made for custody, care and control, access and/or shared care?

Background to the marriage

6. The parties married in September 2001 in France and the wife originally issued proceedings based on the husband’s adultery/unreasonable behaviour on the 4 September 2012. Those proceedings were later amended to unreasonable behaviour only. In the context of this application the mother maintains that the father has formed a new relationship with a woman who resides in Geneva. The proceedings were quite protracted with many hearings in relation to both finances and the children. The issue of final ancillary relief is still to be determined. The father originally wanted joint custody with joint care and control on a week on week off basis. Although willing to agree joint custody the wife for her part wanted care and control to vest in her. The parties eventually agreed joint custody and shared care. From a practical perspective the children remained based with their mother, and they initially saw the father on Wednesday after school until Thursday morning and on every alternate weekend. Following various applications to vary, it was eventually ordered that the father would have the children on alternate single public holidays from 7:00 pm on the night before the public holiday until the day following the public holiday, when he arranged for the children to be taken to school (order of the 10 June 2013). In addition, in so far as the alternate weekends were concerned, it was ordered that the children would be with their father from 2:00 pm on Friday until Monday morning when they went to school (order of the 11 December 2013).  School holidays and public holidays were shared equally. Both parties continued to take the children out of Hong Kong on a regular basis. Notwithstanding the fact that the parties were able to reach these agreements the level of conflict between them remained very high.

What does the law actually say?

7. Hong Kong has continued to rely on the guidance provided by the English authorities and particular reference is regularly made to both Poel v Poel [1970] and Payne v Payne [2001] 1 FLR 1053. This reliance was confirmed in our most recent Court of Appeal decision on the subject of relocation namely SMM v TWM CACV 209 of 2009. Since then the Court of Appeal in England and Wales has handed down other decisions including its landmark decision in MK v CK [2011] EWCA Civ 793. In broad terms this reiterates that in all cases concerning children:

  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. (Lady Justice Black, paragraph 141)

8. With respect I agree. However notwithstanding that it seems that I am still bound by the approach taken by Lord Justice Thorpe in Payne, who suggested that relocation cases should be approached in the following manner:

(40) … To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother’s [father’s] proposals are necessarily compatible with the child’s welfare I would suggest the following discipline as a prelude to conclusion:

i.  Pose the question: is the mother’s [father’s] application genuine in the sense that it is not motivated by some selfish desire to exclude the father [mother] from the child’s life.  Then ask is the mother’s [father’s] application realistic, by which I mean, founded on practical proposals both well researched and investigated?  If the application fails either of these tests refusal will inevitably follow.

ii.  If however the application passes these tests then there must be a careful appraisal of the father’s [mother’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 [her] and his [her] 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 [paternal] family and homeland?

iii.  What would be the impact on the mother, [father] either as the single parent or as a new wife, of a refusal of her realistic proposal?

iv.  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 insofar as appropriate.

In suggesting such a discipline I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological well being of the primary carer.  In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor.”

9. In addition, as in previous cases, it seems to me that reference should also be made to F v H (Children: relocation) [2008] 2FLR 1667 where it was held that:

(1)  The bar as to practicalities to be jumped by a relocation applicant was set at a wide variety of heights depending on the facts and circumstances of the case. In this commonplace category of cross-border family creation in which the primary carer was returning to a completely familiar environment the bar was set considerably lower than in the case of an applicant who in pursuit of some dream or ambition was proposing to take the children to an unknown and untried environment.  The bar was set particularly low if the primary carer was returning, as in this case, to a completely familiar home after a brief absence

10. In this instance the father is applying to relocate, but he is not the care taking parent. Neither is he applying to relocate to a completely familiar environment. In this instance the father wishes to take the children to an “unknown” and “untried” environment because that is where his job is sending him. It is very likely that he will be seconded somewhere else in another three years or so. Thus it is necessary to set the bar at a reasonably high level when considering this matter. 

11. In MC v CK there was a shift away from the approach identified by Lord Justice Thorpe in Payne, especially in a situation where the parents genuinely shared the care of their children. Although Lord Justice Thorpe and Lady Justice Black differed in their approach they seemed to agree that in the event that there was not one primary carer but two, and where the day to day care of the children was genuinely shared between two committed parents, that there should be a difference of emphasis or approach when considering the matter.

12. In MC v CK 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 still 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.

13. It should be noted that the factual matrix in this instance is quite different.

What approach should the court adopt here?

14. As I have said the difficulty here is that the father is not applying to relocate back to France, his home country, but to another third country – Switzerland and again this appears to be on a reasonably short term basis. Although Switzerland is in Europe it is a very different country from France and has its own unique culture. Further it is clear that historically although the father was as involved with the boys day to day life as it was possible for him to be, the reality is that he travelled frequently and worked long hours. It was the mother who was the care taking parent. She provided the boys with a secure home base as they moved from place to place. Thus this application falls outside the norm, in that it is an application by a non care taking parent to relocate to a country other than the parties’ home country. This is something that will need to be borne in mind when applying the established legal principles.

Discussion

15. 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.  In addition I also heard evidence from the social welfare officer who filed a report dated the 22 July 2014.

Should permission be given for the children to leave Hong Kong in order to relocate to Geneva, Switzerland with their father?

Is the father’s application genuine in the sense that it is not motivated by some selfish desire to exclude the mother from the child’s life?

16. Although both parties question the others motives, I accept that the father’s application is not motivated by any desire to exclude the mother from the boys life. The parties have always lived their married life as an ex patriate couple and it was always anticipated that the father would be required to leave Hong Kong at some point. Likewise I accept that the mother’s opposition is not borne out of any desire to distance the boys from their father.

Is the father’s application realistic, by which I mean, founded on practical proposals both well researched and investigated?

17. I accept that the father’s application is both well researched and investigated. The father has found suitable accommodation in which to live and has recently placed an advertisement for an au pair. Although he has not yet employed anyone I accept that he is confident that this should not be a problem. The apartment that he has found includes a separate basement area for a live-in au pair.

18. In so far as schooling is concerned the father has also located a good school for the boys namely X school in Geneva that is about a 10 minutes away from his new apartment. The boys could either go to school by school bus or he could drive them there. He has secured school places for both of them and perhaps most importantly his company will meet the school fees.

19. By way of comparison the mother has moved to live in a spacious apartment in Discovery Bay and the boys presently attend a  school on the Island. The mother will likewise need to rely on the services of a domestic helper and she is in the process of employing someone to assist her. Thus the existing status quo is also a good one. This may change in the event that the father is no longer able to fund the boys schooling through his company. Although the wife questions this, I accept that this is a genuine possibility.

Is the mother’s opposition motivated by a genuine concern for the child’s welfare or is it motivated by some ulterior motive?

20. I also accept that the mother’s opposition is motivated by a genuine concern for the children’s welfare. She cannot comprehend of a situation where she would not continue to be involved with the boys on a daily basis. At present although she is now working full time, she does not travel and can organise her daily life around the needs of the children. For example, she monitors all aspects of their lives from their schooling (including their homework), extracurricular activities and medical needs. I accept that any relocation away from her would have a profound effect on their day to day life.

21. She is also concerned that, despite the father’s protestations to the contrary, that it is more likely than not that the father will be required to travel as part of his new job requirements. Given that the father will have responsibilities in the Middle East and Africa as well as Europe and that he has travelled frequently in the past, I accept that this is a genuine concern. I agree that it would not be appropriate for the boys to be cared for by an au pair when their mother is willing and able to take up that responsibility. 

What would be the extent of the detriment to the mother and her future relationship with the child were the application granted? To what extent would that be offset by the extension of the child’s relationship with the paternal family and homeland?

22. This part of the equation normally applies in the event that a care taking parent is applying to relocate and the non care taking parent is opposing and the relocation contemplated is to the parties’ home country. As already discussed that is not the case here. In any event I accept that the proposed relocation would have a very profound effect on the mother’s relationship with the boys. This is especially so given the fact that the mother has been employed on local terms which means that she has 10 days leave per annum. In effect it would not then be possible for her to travel to Geneva frequently to see the boys. Nor would she be able to easily afford this. Although both parties have family in France I accept that the father’s family live quite a distance from Geneva and that it would not be possible for them to be involved in the children’s lives on a daily basis. Although the maternal Grandmother lives in closer proximity I accept that regular contact would most likely also be somewhat difficult if the children were based with the father.

What would be the impact on the father if his application was refused?

23. Although I accept that the father fears that he would lose contact with the boys in the event that the application is refused – infact despite the ongoing animosity between the parents, the father has continued to see the boys on a regular basis. This should continue in the event that the relocation is not allowed. Both parties expressed concern about telephone/skype contact. This would need to be structured into the boy’s day to day life in either event.

Social Welfare Report

24. Recommendations made to the court in social welfare reports, although not binding are considered to be very persuasive. In the event that a Judge does not agree with the recommendations made then reasons should be given.

25. According to the Social Welfare Officer the boys want both parents to continue to live in the same city – so that they can spend time with both of them on a regular basis. In conclusion the social welfare officer states as follows:

30.  The social investigation reveals that the whole family was French people.  Their home town was in European countries.  Before Mr T and Madam TW came to Hong Kong, the family had already moved to different country, such as Singapore, due to Mr T’s work reason.  The family seemed to be prepared that they would move again when required.  Mr T’s work visa in Hong Kong would expire in early September 2014 and he was prepared to go to Geneva, Switzerland for working in the coming years.  Despite Madam TW got an employment visa to stay in Hong Kong for a year, her staying status very much depended on her employment status.

31.  Though C and B were born locally, they did not have sense of identity here.  Instead, they have sense that they had a family in European countries.  They did not have clear concepts about the custody issue or relocation issue.  However, they have strong views that they did want both parents live in the same city so that they could see them or stay with them equally.  Seemingly, if both parents could not reach an agreement on the relocation issue, the children might be caught in a difficult situation as they loved both parents much.  They might also face the loyalty conflict to choose between the two different plans proposed by their parents.  Thus, they were ambivalent to express their views on the relocation issue to their parent freely.  The children’s wish clearly indicated that they did not care about where they would live in future but they strongly hoped for a place where they could still be loved by their parents. They felt secured to have both parents stayed in one city and their feelings should be recognized.

32.  When considering the feasibility of the plans proposed by both parents, Madam TW proposed for maintaining the stability for the children.  On the other hand, Mr T also proposed for returning to European countries for settlement as they were from there.  Despite both Madam TW and Mr T felt to have difficulty to reach consensus on their proposed plans, they actually shared the similar views that stability was important for the children’s growth, especially after the parents’ divorce.  In this connection, Mr T’s plan seemed to be more preferable as he could bring the children to Europe which was their origins. The children could continue receiving education in their own language while they could also receive European culture inheritance which would be beneficial to their identity building.  Besides, the proximity and accessibility to their home country and extended family are also a valuable support to the children during their course of growth and development.  On the contrary, Madam TW’s plan was to stay in Hong Kong where her stay in here was uncertain in future as her stay is subjected to review on her employment visa a year later.

33.  Madam TW’s concern if she went to Geneva with the two children was understandable. As a mother, Madam TW is proven to care the two children much and had helped them adjust to the parents’ divorce.  It is certain that C and B would miss Madam TW much if she did not follow them to go to Geneva together.  Thus, the Investigating Officer highly suggested that both parents to put aside the differences between them and to work out a feasible financial plan that could allow Madam TW to join C and B to go to Geneva or stay in a European country. It will be beneficial to C and B’s development if this suggestion could be carried out.  Meanwhile, joint custody and shared care and control arrangement can be maintained in that scenario.  However, if both Mr T and Madam TW could not work out a plan to move to Geneva or European countries together, it is suggested to let the joint custody arrangement be maintained while the care and control of C and B be varied to let Mr T have the care and control of the two children while Madam TW had free visitations and generous access to C and B with free accommodation be provided during her access with them to facilitate the mother-child relationship.

26. The difficulty with this recommendation is that the parents have not been able to put aside their differences and they have not been able to work out a feasible plan that would allow both of them to stay in close proximity to each other. The mother complains, and with some justification it seems to me, that the father has not put forward any concrete proposal that would allow her to live in Geneva in any event. I also accept that it may be difficult for her to obtain a visa that would enable her to live in Geneva. In all probability she would need to obtain employment and then a work visa on the back of the visa as here. There is no guarantee that she would be successful in that regard. The only other alternative is that she returns to live in France. Again she would be faced with similar difficulties in that she would need to find alternative employment within close proximity of Geneva.

27. I also have some difficulty with the social worker’s suggestion that a move to Geneva would assist the boys in helping them to establish a sense of identity given that the father is moving to Switzerland and not to France. The mother makes the following point in her affidavit of the 23 September 2014, when discussing “third culture children” i.e. that

…As much as Geneva is close to France, this is not France.   

I agree.

28. The social worker also mentioned the fact that the mother only had a one year work visa in Hong Kong that expires on the 12 June 2015. The mother confirmed this to be the case – but pointed out that this is not unusual. The social worker said that the mother’s ability to remain in Hong Kong was somewhat tenuous. With respect the same thing could be said of the father. He will be living and working in Switzerland courtesy of a Swiss work visa. Given that Switzerland is not part of the European Union it follows that neither party has the ability to live and work in Switzerland as of right. In either event, whether the children remain in Hong Kong or relocate to Switzerland, they will be a dependant on the parent with whom they are living.

29. In such circumstances and given the other factors summarized below I do not intend to accept the social workers ultimate recommendation in this case.

Bearing everything in mind what would be in the overall best interests of the children?

30. All relocation cases are difficult and this one is no exception. Having given the matter much thought I have come to the conclusion that I do not think it would be in the children’s best interests to be separated from their care taking parent. It does not seem to me to be feasible to expect the mother to contemplate moving to France to be close to the boys with all of the uncertainty that that might entail. I accept that there is no guarantee that she could live in Geneva and share their care as has been suggested by the father. I also agree that it is not reasonable to expect her to follow the father from place to place on an ongoing basis as if they had remained married. She has her own life to lead and her own career to develop – quite separate from that of the father. This is not an application to relocate “home” by a care taking parent and therefore the bar that has been set is a high one. Although I accept that there may be genuine difficulties here with respect to the payment of the school fees going forward that on its own is not sufficient for me to find in favour of the father. In conclusion therefore I have decided that it would be in the best interests of the children if they remained in Hong Kong.

What orders should be made for custody, care and control, access and/or shared care?

31. In such circumstances it follows that the appropriate order is that there shall continue to be an order for joint custody of the two children of the family namely CT, a boy born in June 2003 and BT, a boy born in April 2005, with care and control to the petitioner mother and reasonable access to the respondent father to include the provisions in paragraphs 32 and 33 below.

32. The order dated the 22 October 2013 sets out in detail how the parties shall share the children’s school holidays. This shall remain in place in so far as it relates to the Autumn half term, the Christmas school holiday, Chinese New Year school holiday and the Easter school holiday (see paragraph 1). The summer school holiday shall also continue to be shared equally between the parties as before. Paragraph 2 of the order dated the 22 October 2013 relating to single public holidays shall be discharged. In addition orders 4 and 5 as contained in the court order dated the 10 May 2013 relating to alternate weekends and Wednesday access shall be discharged.

33. In addition the father shall have daily telephone access to the two children and weekly skype access, at a time to be mutually agreed between the parties. In the event that the parties are unable to agree those times, each is to write into the court with their respective proposals within the next 7 days. The father shall also be entitled to additional staying/visiting access in the event that he is visiting Hong Kong, upon giving reasonable notice to the mother. In the event that either party wishes to vary these arrangements then I will give liberty to apply on an urgent basis. 

Costs

34. Given that this is a child related matter there shall be no order as to costs.

Ancillary relief

35. The hearing before Deputy District Judge A. N Tse Ching shall be restored to the 22 January 2015 at 9:30 a.m., Court No. 10.