SMM v. TWM

CACV209/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 209 OF 2009

(ON APPEAL FROM FCMC 11230 OF 2008)

________________________

BETWEEN

________________________

J U D G M E N T

________________________

Hon Cheung JA :

Two appeals

1. There are two appeals in this case.  The first is an appeal by the mother against the decision of H H Judge Melloy refusing her permission to remove her child from Hong Kong (‘the relocation application’).  The second is an appeal by the father against the decision of the Judge granting sole care and control of the child to the mother (‘the care and control application’).

Mother’s appeal on relocation application

Background

2. The parties are an American couple.  The mother was aged 39 and the father 43 at the time of hearing below in July 2009.  They first met in the United States in 1997 and were married there in 1998.  By then the father was working as a banker in New York.  In 2000 the father was transferred to Singapore on a two year contract. 

3. The mother was previously working as an accountant.  By the time of their marriage, she had already decided to pursue a career in veterinary medicine and had studied part time in a veterinary school when the father obtained the job in Singapore.  With his agreement, the mother went to Canada to obtain her veterinary degree and visited the father in Singapore during her school breaks.

4. In January 2002, the mother discovered that she was pregnant and decided to defer her study and joined the father in Singapore.  She gave birth to the child, a boy, in September 2002 in Singapore.

5. In August 2003, the mother went back to Canada to complete her studies and with the agreement of the father, took the child with her.  According to the mother, by then there were already cracks in the marriage : she felt isolated in Singapore with her child because of the father’s work and his habit of going out late at night with his acquaintances.

6. The initial agreement of the couple when the mother went back to Canada with the child was that the child would stay with the mother for one semester only.  The mother, however, subsequently changed her mind because she felt that the father was travelling all the time with his work it would be a terrible idea for the child to be looked after by a domestic helper in Singapore.  So the child remained with the mother for the rest of her study in Canada until 2005 when she obtained her degree.  During this time the mother was able to enlist the help of a lady, a former special needs teacher, who was running a day care centre to look after the child during the day.  She would pick up the child from four to five in the afternoon after school.  She would take care of the child in the evening and weekends.  She said she was a better mother when she was able to be by herself.  Needless to say the decision to have the child with her in Canada caused further deterioration in the couple’s marriage.

7. In May 2005, the mother graduated from veterinary school and rejoined the father in Singapore in June 2005.  In January 2006, the father obtained a job with the Hong Kong branch of his bank and the couple with the child came to live in Hong Kong.

8. In February 2008, the mother obtained a full time job with the Agricultural and Fishery Department.

9. Since January 2009 the child studied at an international school which is an American discipline school.

10. The parties have maintained their family ties with America despite moving to Asia in 2006.  The mother’s own mother (‘the grandmother’) now lives in Shelton, Connecticut.  The grandfather had passed away a few years ago.  The mother has a sister and a brother living in Massachusetts.  The sister is married with four daughters.  The father’s own parents are also living in Connecticut.  The couple visited their families during Christmas.  The mother had spent more time in America visiting her ailing father on and off for four months between June 2006 and February 2007.  In the summer of 2009 the mother spent four weeks with the child in America and visited three schools for the purpose of implementing her desire to relocate the child out of Hong Kong.

11. The parties had already sought marriage counselling in Singapore in 2003 and had marriage mediation in Hong Kong in July 2008 after the mother first discussed divorce with the father in June 2008.  The mediation was unsuccessful and the mother petitioned for divorce on 22 September 2008.  On 12 February 2009, she issued the application for leave to permanently remove the child from Hong Kong. 

12. An interim order was made by the Judge on 2 April 2009 ordering that the child will remain in the matrimonial home and in the joint care of the parents on the following basis : he would be in the care of the father from the end of school on Wednesday afternoon until the following Thursday morning and also on every alternate weekend from the end of school on Friday until Monday morning.  The child would be in the care of the mother at all other times.

13. The parties agreed to rent a serviced apartment for their use while they were not caring for the child and agreed one of them would move out of the matrimonial home to the serviced apartment while the other was caring for the child.

14. On 24 July 2009 the father applied by summons for joint custody and joint shared care and control of the child.

15. On 21 August 2009 the Judge after hearing the relocation application refused the mother’s application to remove the child out of jurisdiction.  She granted the parties joint custody of the child with sole care and control to the mother.

16. The mother now appeals against the refusal to let her take the child out of jurisdiction.

The present position

17. The parties informed the Court that since July 2009, the father had moved to a rented accommodation near the matrimonial home.  The new accommodation has a room for the child and the interim arrangement concerning the care of the child continues save that when the father has the child, the child will stay in the father’s home.

18. The father now also has access to the child on Monday evenings after school until 8 pm on the weeks when he does not have access to him over the weekends.  The school holidays are split equally between the parents.

The principles

19. The parties agreed that the applicable principles governing relocation application are based on the Payne v. Payne [2001] Fam 473 line of cases.  They are English Court of Appeal cases.  There is no House of Lords’ decision on this issue.  These principles have been applied in Hong Kong, for example, in M v. B (Removal of children from the Jurisdiction) [2009] HKFLR 349, by H H Judge Bruno Chan although there has not been any Hong Kong Court of Appeal decision on relocation applications.

20. Payne is based on the earlier decision of Poel v. Poel [1970] 1 WLR 1469.  In Re G. (Leave to remove) [2008] 1 FLR 1587 the English Court of Appeal reaffirmed the principles in Payne.

21. The principles in Payne can be summarised as follows :

1) The distinct features of a relocation application are first, the applicant is invariably the mother and the primary carer; second, generally the motivation for the move arises out of her remarriage or her urge to return home; and third, the father’s opposition is commonly founded on a resultant reduction in contact and influence.

(per Thorpe LJ at paragraph 27)

2) The two propositions that have been consistently applied by the Courts are, first, the welfare of the child is the paramount consideration; and second, refusing the primary carer’s reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children.  Therefore her application to relocate will be granted unless the Court concludes that it is incompatible with the welfare of the children.

(per Thorpe LJ at paragraph 26)

3) The application should be approached as follows :

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

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

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

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

(per Thorpe LJ at paragraph 40)

4) In short, the relevant factors are :

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

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

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

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

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

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

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

(per Butler-Sloss P at paragraph 85)

22. The above principles referred to the Children Act 1989 and residence order.  They are not available in Hong Kong and I will address them later.

The relevance of the guidelines

23. In Payne Thorpe LJ recognized the need to address the individual facts of a case and the discretionary aspect of the judicial exercise but considered that the guidance may be relevant on both the domestic and international level.  On the domestic level, the opportunities for lawyers to give clear and confident advice as to the outcome helps to limit the volume of contested litigation.  In terms of contested hearings, clear guideline will simplify the task of the trial judge and helps to limit the volume of appeals (paragraph 27).  On the international level, there is a clear interaction between the approach of Courts in abduction cases and in relocation cases.  If individual jurisdictions adopt a chauvinistic approach to applications to relocate then there is a risk that the parent affected will resort to flight.  Conversely recognition of the respect due to the primary carer’s reasonable proposals for relocation encourages applications in place of unilateral removal.  Equally a return following a wrongful retention allows a careful appraisal of welfare considerations on a subsequent application to relocate.  Accordingly it is very desirable that there should be conformity within the international community (paragraph 28).

Recent affirmation

24. In Re G (judgment given on 11/12/2007) it was argued that Payne was out of line with the modern approach of granting joint residence orders to the parties and that Payne was predicated upon a status of sole residence order and sole primary carer.  This argument was rejected by the Court of Appeal.  It was held that there has been no self evident social shift and Payne was decided at a time when joint residence orders were not exceptional.

Post 1997 use of precedents

25. After 1997, the English authorities are 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 A Solicitor (24/07) v. Law Society of Hong Kong [2008] 2 HKLRD 576. 

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 section 10 of the Guardianship of Minors Ordinance (Cap. 13) (‘GMO’) and the term ‘custody’ in section 19 of the Matrimonial Proceedings and Properties 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 section 1(3) of the Children’s Act : see, for example, H H 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 principles should be applied and adopted in Hong Kong as well.

29. It should be noted that the Hong Kong Law Reform Commission Report on Child Custody and Access (7^th March 2005) has recommended changes to the GMO, by, among other things, replacing custody orders with residence and contact orders.  There has been no implementation of the recommendation yet.  In my view the Administration should make a serious effort in implementing the recommendations by legislation soon. 

Exercise of discretion

30. In the present case the Judge has applied the Payne principles.  This being an appeal against a discretion, the issue then becomes whether she was plainly wrong in her decision or whether she has taken irrelevant matters into consideration in her decision or has ignored relevant matters which entitles this Court to intervene.  One bears in mind the caution stated by Baronese Hale in Re J (Child Returned Abroad : Convention Rights) [2005] UKHL 40 that,

‘ Only if his decision is so plainly wrong that he must have given far too much weight to a particular factor is the appellate court entitled to interfere: see G v G [1985] 1 WLR 647, [1985] FLR 894. Too ready an interference by the appellate court, particularly if it always seems to be in the direction of one result rather than the other, risks robbing the trial judge of the discretion entrusted to him by the law. In short, if trial judges are led to believe that, even if they direct themselves impeccably on the law, make findings of fact which are open to them on the evidence, and are careful, as this judge undoubtedly was, in their evaluation and weighing of the relevant factors, their decisions are liable to be overturned unless they reach a particular conclusion, they will come to believe that they do not in fact have any choice or discretion in the matter.’

The restraint is, of course, imposed in situations where the discretion has been properly exercised.

Basis of refusal

31. The Judge refused the application on two grounds.  First, she was not satisfied with the plan proposed by the mother concerning the relocation.  Second, she was concerned that the mother’s application was partly motivated by her desire to exclude the child from the father.

The important factors

32. I will address these two matters in turn.  Before I do so it is necessary to bear in mind the following important factors which must be emphasised, namely,

1) At the time of the application the parties had been in Hong Kong for only about two years and nine months.  Their connections with Hong Kong was limited.  The initial plan of the husband was to take up employment in Singapore for two years only.  The mother has never intended to leave the USA for a long period of time.

2) The mother is not taking the child to an entirely new environment but is returning to her home country where she has family members and where the father also has family members.  The mother wishes to be with her extended family with whom she is close.  If the child is allowed to return, he will be able to see more of his extended family rather than simply be with his parents’ friends and his friends which is the typical lifestyle of an expatriate family in Hong Kong.

3) The mother is here because of the marriage only which has been already showing signs of deterioration before they came here in January 2006 and is now irretrievably broken down.  The refusal of her application means that she is forced to remain here in Hong Kong against her will.  Thorpe LJ observed in Re F & H (Child Relocation) [2008] 2 FLR 1667 at [9] that the bar as to the practicalities that must be jumped by the relocation application is set at a wide variety of heights depending on the facts and circumstances of the case : the bar is particularly low when the primary carer is returning to the completely familiar home life after a brief absence.

4) The Judge clearly found that the mother has historically been the main caretaking parent of the child who is still only a small boy.  This was confirmed by the social worker.  The mother has arranged her work schedule so that she would be able to see the child off to school, go to work, and return by 6:15 pm.  She did not have any travel commitments and entertainment requirements and was fully available for the child on her return from work.  The Indonesian domestic helper who has been with the family since the Singapore days takes care of the child when he comes back from school.

5) The father challenged the finding of the Judge that the mother has been the primary caretaker and submitted that the observation of Thorpe LJ about the relatively lower bar for a primary caretaker to overcome in relocation application has no application when in this case both the parents are primary caretakers.  The father relied on paragraph 21 of the Judgment when the Judge said :

‘ This is then where the matter stood as at the time of trial. As Ms Rattigan has pointed out for the father, this is not a case where the mother is seeking leave to permanently remove after a period of time has elapsed since the divorce and where the day-to-day care of the child in question is established.’

6) In my view the Judge was merely responding to the situation posited by counsel, namely, post-divorce and her finding on the mother being the primary caretaker is amply demonstrated by the latter part of the judgment.  While the father is a loving father towards the child, the mother clearly is the primary carer of the child since his birth.  Even after she had taken up her present employment, the evidence, including that of the interim care arrangement, clearly shows that she is the person primarily caring for the child.

7) Whilst the mother is now in gainful employment pursuing a career she is interested in and has a close group of friends which can give her support, recognition must be given to the fact that she suffers from a failed marriage and is alone in a country whose attraction is greater from the view point of the father in terms of his career advancement than hers.

8) The mother is not weak by disposition and has bravely endured the refusal to allow the child to go back with her to the USA.  But it will not require an expert to tell the sense of alienation that a woman in the mother’s situation will experience.  The Judge acknowledged that her refusal would be disappointing to the mother but she had no doubt that ‘she will indeed make the best of it’.  In my view, the consideration should not depend on the nature of the disposition of the mother and her reaction to the outcome of the application.  Whether a mother is strong and will be able to bear the disappointment with fortitude or is of a weaker mind and will suffer great distress by the refusal is not a determinative factor.  As Sachs LJ observed in Poel at 1473 this is the sort of sacrifice or endurance that ought not to be accepted by the Court because it may well in the long term endure to the detriment of the child.  The very experienced family judge Ormrod LJ also stated in Chamberlain v. de la Mare (1983) 4 FLR 434 at 443 that

‘ The reason why the court should not interfere with the reasonable decision of the custodial parent, assuming, as this case does, that the custodial parent is still going to be responsible for the children, is, as I have said, the almost inevitable bitterness which such an interference by the court is likely to produce. Consequently, in ordinary sensible human terms the court should not do something which is, prima facie, unreasonable unless there is some compelling reason to the contrary. That I believe to be the correct approach. It would have been helpful to the judge if his attention had been called to the case of Moodey and he might have approached the case on different lines.’ (emphasis added)

9) In any event there is evidence that the mother is receiving counselling on stress arrangement about once a month.  In the present context, stress relating to the breakdown of the marriage is a real one.  In addition the second Social Investigation Report also stated that if the Court does not grant leave, the mother would be much displeased in dealing with the resentment she would feel towards the father in resisting her application.

10)           Looking at these factors and without relying on any presumption in favour of the primary carer (which presumption was expressly disavowed by the Judges in Payne), one would have thought that the mother, subject to the two issues I will address, has established an overwhelming ground work in her application for permission to relocate the child. 

The plan of the mother

33. The Judge said the mother’s plan lacked details as to her future intention on study or work, accommodation, child care and school.  That was also my concern and I asked Mr. Yu SC who appeared with Mr. Clough as counsel for the mother, to address this issue at the beginning of this appeal.  After hearing the submissions from the parties and reviewing the evidence, I am satisfied that the Judge had erred on this aspect of the case.  In my view the Judge, who otherwise indeed has handled the case with meticulous care, was indeed plainly wrong on this issue by attaching far too much weight to the so called lack of details of the mother’s plans.  For a start it has to be pointed out that the mother, although she has been visiting her family in the USA from time to time while living in Singapore and Hong Kong, has been away from her home country for nearly eight years at the time of her application.  She is not financially secured as matters concerning financial provision have not been resolved.  Anyone who has been away from a place, albeit a former home, for such a lengthy period will require time to assess the situation in terms of long term outlooks.  In terms of her career, the mother has stated that she intends to pursue a veterinary pathology programme : it is a three year course where she would work and receive pay but at the same time receive training.  Common knowledge will tell that application for post doctoral training which would involve academic institution funding the candidate is not easy to come by.  The mother’s application to Harvard for further training was unsuccessful.

34. In her interview with the social worker, the mother had mentioned the various schools that offered such a course, one of which was Florida which was mentioned in the judgment.  But as the mother explained in her evidence she had no intention of going to Florida at all.  This is not a case where the mother is following some wild dreams of moving to a new exotic country without giving the slightest thoughts of what she would actually do there.  She had indicated a plan which would be able to provide her with financial support as well as training.  As explained by her the alternative of seeking employment clearly is something that would at least require a firm indication as to when she would be able to return to the USA.  This is not easy to provide with the pending matrimonial proceeding between the parties.

35. She had informed the Judge that her proposal is to live with her mother temporarily until she could purchase her own home or something in areas, hopefully in Massachusetts near her sister or in Connecticut depending on where she would find a job.  When asked what stopped her from making positive plans for the purchase of property and the like, her answer was that she did not have enough money to purchase the home and she has to wait until the resolution of the financial issue.  In my view the mother is a person who has shown to be a responsible parent.  During her studies in Canada, she had looked after the child well and this remains the situation even after she became employed in Hong Kong.  Is it likely that she would suddenly abandon all her interest in the child once she is allowed to return to the USA with him?  The answer is most unlikely.  In the circumstances of the case the mother’s plan of initially relying on the support of her family in the USA must be the best indication of the arrangements that are required on her return.  In my view the Judge had plainly erred on this point. 

36. In terms of the schooling of the child, she had visited three schools near her home town.  The father has been kept informed of the schools but has not responded to the mother’s request to indicate his preference.

Contact with the father

37. The Judge expressed concern about the mother’s plan regarding access.  She held that this concerned her most and was pivotal.  The Judge was right to express her concern bearing in mind the distance between the child and father and the return to the USA would mean that the father would not be able to maintain the close contact with the child as before.  The mother suggested that the child and father can talk on the mobile phone or by direct video link on the internet.  She also suggested that contact on alternating Christmas and Easter and splitting the long summer vacation.  The Judge said that this would mean that the father will see the child twice a year.

38. In my view the real issue in this case is really about the difficulties of the father in maintaining contact with the child with the physical distance between them.  I recognise the importance of contact.  Hence the contact issue has been specified in Payne to be two of the relevant factors to be considered.  However as a matter of principle, any relocation application will necessarily involve one parent not being able to have the same degree of contact with the child than if they are in the same physical locality.  As Butler-Sloss LJ (as she then was) observed in Re E (Residence: Imposition of Conditions) [1997] 2 FLR 638, the requirement for frequent rather than extended contact appears to be unnecessary for children for tender age.  Furthermore, in view of the relative short period of time the parties have been in this part of the world, the father has to face the reality that they are only temporary residents here and when their marriage breaks down, the mother has every right to return home and, subject to the Court’s approval, to bring the child with her as well.

39. One issue that the Judge has not canvassed when she discussed contact is that the father’s own family members are now living in Connecticut.  It is not as if after relocation the child will have no contact whatsoever with his other extended family.  Based on what the mother said about her wish for the well-being of the child, I would expect her to encourage her son to have frequent contacts with his paternal grandparents.  The paternal grandparents may, if they wish, assist in bringing the child back to Hong Kong to see the father during school breaks.  By all accounts the father is financially capable to meeting the expenses.  The father can further augment his annual five week holidays by making use of the 17 general public holidays in Hong Kong.  I have no doubt that the father will have much more than just a twice yearly contact with the child.  It is a matter of discussion for both parents to work out the details of the access arrangements.

Desire to get away from the father

40. The Judge accepted that the mother ‘genuine feels’ about her wishes to return to the US so that she can be near her family and friends; that she wants to go home and that she had never intended to make Hong Kong, or indeed Asia as her permanent residence; she has missed out on a lot — for example her sister has had four children and her father has died; she wants to pursue her career as a vet in the USA and says that her career prospects are greater there.  But the Judge held that the mother is also partly motivated by a desire to get away from the father : when being cross-examined she said that was part of the reason why she wanted to leave and she also acknowledged that in her affidavit when she said that she wished to be able to live her life without the pressure created by the father.

41. The Judge whilst accepting that the mother may be honest had also accepted submission of counsel for the father that this does call into question the reasons for her application especially when,

‘… this is combined with the fact that she may not necessarily be close to her family when she goes back (possibility of going back to Canada or vet school somewhere else in the USA is not ruled out) and she has no realistic proposal for the Respondent to remain part of (the child’s) life apart from access twice a year this is all the more questionable (Her brother and sister are in Boston, MA, not Shelton CT).’

42. In my view the Judge has also plainly erred on this aspect of the case.  There is no doubt that as a result of the breakdown of the marriage, the mother wishes to get away from the father.  But there is a difference between her desire to be away from the father and a selfish desire to exclude the child from the father.  The former situation is understandable in light of the emotional distress that she, as the wife of a failed marriage, will have to endure if there is constant contact with someone whom she no longer wishes to spend her life with and her wish to make a fresh start in the USA.  Hence the mother was only speaking her mind frankly when she said in evidence that if, the Court grants her application, she would be ‘very much a relieved parent’ which she further explained in cross-examination :

‘ Q. What does “relieved” mean?

A.       That I will get to return home and I’ll feel good about that.

Q.    Is it because you’ll feel good about getting away from [the father]?

A.    That’s part of it.’

43. In my view in matters of human emotions and feelings the issue is not simply black and white.  Any relocation application will inevitably include an element of the applicant mother wishing to put the past behind her and ‘get away’ from the former spouse and be ‘relieved’ in so doing.  But the ultimate question that must be asked is whether the mother’s application is genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life.  The Judge did not make any finding that there was any such selfish desire.  As a matter of fact it was never suggested to the mother that her motive for the application was a desire to exclude the father from the child’s life.

44. The mother has stated clearly that she will not attempt in any way to alienate the child from the father.  She said

‘ I will in no way attempt to alienate [the child] from his father. I recognize the importance of the father son relationship and I will do all I can to maintain it within the constraints of the geographical separation.’

45. The Judge wrongly attached importance to the view that the mother was partly motivated by a desire to get away from the father.  This was mentioned twice by the Judge, once on the issue on the mother’s intention and repeated in the concluding part of the judgment.  In my view the Judge’s view on this issue further vitiates her exercise of the discretion which entitles this Court to intervene. 

This Court to exercise the discretion

46. This is a case where this Court can assess the case on the same material before the Judge.  She had found both of the parents to be impressive witnesses.  She had not expressed any preference on the evidence of either of the parties by reason of her trying the case : see Chamberlain at 448G.   In my view the mother has amply discharged the burden in the relocation application. 

47. The social worker was of the view that it will not be in the best interest of the child to be relocated to the USA.  She found that the child is a cheerful child with no adjustment problems and the father has prioritised his time to be fully attended to the child in access.  She was confident towards the father’s commitment and genuineness and is optimistic towards his care plan for the child.

48. I am sure the father is a loving and caring parent and has made great efforts in playing a close part in the child’s life despite the breakdown of the marriage.  The social worker’s view has to be respected but this is the first case on relocation for the social worker.  Ultimately the decision whether it is in the welfare of the child to be relocated lies with the Court.  It is a most difficult decision but I am firmly of the view the welfare of the child which is of the paramount consideration, lies in him being able to return to the USA with the mother.  He is at a tender age and may easily overcome adjustment problems in a new environment.

Other authorities

49. Both parties have referred to a number of cases on relocation.  Apart from referring to the ones that established the principles, I have not discussed the other cases since each case has its individual facts and it is the application of the principles to the facts of a case that matters.

Conclusion

50. I would allow the appeal and grant the mother permission to permanently remove the child from Hong Kong when an alternative contact arrangement when the child is in the USA has been either agreed or determined by this Court.  In line with the modern approach, I would further order this Order which incorporates the contact arrangement be registered as a ‘mirror order’ in the court with matrimonial jurisdiction nearest to Shelton, Connecticut.  This order is granted upon the mother’s undertaking to register this Order within three months of her arrival in the USA.

Husband’s appeal on care and control

51. The parties agreed on joint custody of the child but disagreed on care and control.  The Judge ordered joint custody of the child to the parents and sole care and control to the mother with generous access to the father as specified.  The father appeals against the order granting care and control of the child to the mother.  He wants joint care and control of the child. 

52. Since I have allowed the mother’s appeal on relocation, my view is that she having the sole care and control of the child while she is in the USA would be the most appropriate order but in any event I would have affirmed the order of the Judge on care and control.

53. The Court’s jurisdiction on children is found both in section 19 of the MPPO in that the Court may make such order as it thinks fit for the ‘custody and education’ of any child of the family under the age of 18 and in section 10 of the GMO in that the Court may make orders regarding (a) the custody of the minor and (b) the right of access to the minor of either of his parents.

54. The first and paramount consideration in application under either Ordinance shall be the welfare of the minor : section 3 of GMO and section 48C of Matrimonial Causes Ordinance.

Meaning of custody, care and control

55. The terms of ‘custody, care, supervision and access’ are not defined in the legislation.  Custody means making the decisions of a child’s life : Hong Kong Law Reform Commission Report on ‘Child Custody and Access (March 2005).  Care and control generally means the day-to-day looking after of the child.  I have the benefit of reading the judgment in advance of another division of this Court (Yuen, Hartmann JJA and Lam J) in PD v. KWW (Joint custody, care and control) (CACV 188/2009) which will be delivered on the same date of this judgment.  In that judgment, Hartmann JA addressed in detail the meaning of the concepts of custody and care and control with which I respectfully agree.  For ease of reference, I will repeat the difference of these two concepts :

‘ 31. The decisions to be made by a custodial parent are those of real consequence in safeguarding and promoting the child’s health, development and general welfare. They include decisions as to whether or not the child should undergo a medical operation, what religion the child should adhere to, what school the child should attend, what extracurricular activities the child should pursue, be it learning a musical instrument or being couched in a sport. A parent vested with custody has the responsibility of acting as the child’s legal representative.

32.   By contrast, the decisions to be made by a parent who (at any time) has care and control of the child are of a more mundane, day-to-day nature, decisions of only passing consequence in themselves but cumulatively of importance in moulding the character of the child. They include a host of decisions that arise out of the fact that the parent has physical control of the child and the responsibility of attending to the child’s immediate care.  They include decisions as to what the child will wear that day, what the child may watch on television, when the child will settle down to homework and when the child will go to bed.  They also include the authority to impose appropriate discipline.’

Principles on joint custody

56. The Judge has ordered joint custody and this is no longer a contentious issue.  In so far as it may impact on care and control, I will again repeat the views of Hartmann JA on the proper approach to joint custody :

‘ Joint Custody: the proper approach

52. Today, although there has been no change in our law similar to many other common law jurisdictions, orders of joint custody are in no way exceptional.  This is because it is accepted that, in principle, such orders are in the interests of children.

  53.   In all but the most exceptional circumstances, the effect of divorce on the children of the marriage, especially children of tender years, is deeply felt.  In all but the most exceptional circumstances, such children desire that they should continue to be protected and guided by both parents.  The case before us is an example.

  54. In the result, in the best interests of the child, the fact that, as a result of the breakdown of the marriage, relations between the parents are strained is not of itself a reason to refuse to make a joint order of custody.  Nor is the fact that the parent to be given care and control does not agree.  Such orders look to the future.  They will govern a limited area of exchange between the parents, albeit one of the greatest importance.

55. Accordingly, the issue for the judge is whether, with the court proceedings concluded, it is reasonably anticipated that the parents will be able to agree on the questions of importance that will determine the upbringing of their child, both recognising that, as difficult as it may be for them, this process of co-operation is in the best interests of the child.

56. In determining this issue, the judge is entitled to proceed on the presumption that competent, loving parents possessed of sufficient objectivity to be able to make rational decisions in the interests of the child will be able to co-operate with each other concerning matters of importance in the upbringing of the child.

57. At all times, of course, the welfare of the child remains the first and paramount consideration.  As this Court has recognised (see, for example, Y v P [2009] HKFLR 308), there may be occasions when the ability of the parents to reach any rational accord in respect of important matters concerning the upbringing of their child is so deeply undermined that to compel attempts at co-operation will not protect the interests of the child but only leave the child more vulnerable.’

Meaning of residence order

57. In D v D (Shared Residence Order) [2001] 1 FLR 495 Hale LJ (as she then was) explained the concept of residence orders by reference to the English law reform papers :

‘(22) ….each parent with parental responsibility should retain their equal and independent right, and their responsibility, to have information and make appropriate decisions about their children. If, of course, the parents were not living together it might be necessary for the court to make orders about their future, but those orders should deal with the practical arrangements for where and how the children should be living rather than assigning rights as between the parents.

(23)   A cardinal feature was that when children are being looked after by either parent that parent needs to be in a position to take the decisions that have to be taken while the parent is having their care; that is part of care and part of responsibility.  Parents should not be seeking to interfere with one another in matters which are taking place while they do not have the care of the children.  They cannot, of course, take decisions which are incompatible with a court order about the children. But the object of the exercise should be to maintain flexible and practical arrangements wherever possible.’

Difference between residence order and custody order

58. As to the difference between residence orders and custody orders, Hale LJ referred to the Law Commission’s Report Law Com No. 172 (1988) on Guardianship and Custody :

‘ Apart from the effect on the other parent, which has already been mentioned, the main difference between a residence order and a custody order is that the new order should be flexible enough to accommodate a much wider range of situations. In some cases, the child may live with both parents even though they do not share the same household. It was never our intention to suggest that children should share their time more or less equally between their parents. Such arrangements will rarely be practicable, let alone for the children’s benefit. However, the evidence from the United States is that where they are practicable they can work well and we see no reason why they should be actively discouraged. None of our respondents shared the view expressed in a recent case [Riley v Riley] that such an arrangement, which had been working well for some years, should never have been made. More commonly, however, the child will live with both parents but spend more time with one than the other. Examples might be where he spends term time with one and holidays with the other, or two out of three holidays from boarding school with one and the third with the other. It is a far more realistic description of the responsibilities involved in that sort of arrangement to make a residence order covering both parents rather than a residence order for one and a contact order for the other. Hence we recommend that where the child is to live with two (or more) people who do not live together, the order may specify the periods during which the child is to live in each household. The specification may be general rather than detailed and in some cases may not be necessary at all.’

59. The type of order suggested by the Law Commission is shared residence orders.  As observed by Lord Hoffmann in Holmes-Moorhouse v. Richmond upon Thames LBC [2009] 1 WLR at [7] that nowadays in England shared residence orders are not unusual.  They do not necessarily provide for the children to spend equal time with each parent.

Reliance on shared residence order

60. Apart from having joint custody of the child, the father wanted shared care and control as well.  He argued that an order for joint custody and shared care and control would be akin to shared parenting and a shared residence order with the child sharing his time and residence with both parents (even if it does not necessarily have to mean time shared on an exactly equal basis).

The father’s proposal

61. The father wanted shared parenting on a more or less equal basis.  He did not want to be just a ‘fun-time dad’.  His proposal was that the child would spend his time with each parent on a week on and week off basis with the changeover probably being on a Sunday evening.  He accepted that the child may miss the parent with whom he is not based and says that he had no difficulty with the mother coming over for supper a couple of times a week.  According to the Judge he seemed to envisage the mother spending time in his apartment.  He also accepted that she might see the child when she gets home from work — as generally speaking she gets home earlier than he and he has no difficulty with her seeing the child then.  He said that he would be happy to be generous and flexible in this regard and would ask for the same courtesy in return. 

62. The father’s proposal was that when the child was at home he would try to get home by about 7:00 pm.  He said that he did not need to travel as much as before and in any event he would plan to travel in the weeks that he did not have the child.  He also said that he did not have to entertain late at night as regularly and he would try to ensure in any event that he would not do so when the child is with him.  He confirmed that he would never leave the child on his own.  In an emergency he said that he would call upon the mother for assistance.  All in all the father said that he thought this arrangement would not only be best for the child, it would be best for everybody.

The mother’s view

63. The mother’s view was that shared parenting was not practical.  It would not be to the child’s interest as it would be too disruptive.  She was also concerned with the lack of possible control as the child goes older.

The Judge’s view on the mother as the main caretaker

64. The Judge had held that since the mother has always been the main caretaker of the child and this aspect must not be underestimated.  I have already dealt with this point and I entirely agree with the Judge.

65. The Judge held that the father’s proposal was not practicable.  She was sure that in the father’s employment as a managing director dealing with sales, he will still be required to travel and entertain from time to time.  The evidence was that for the five years up to June 2008 the father travelled 130 days in the year.  The late night out by the father meant that he would sleep until early afternoon the next day and has no time to be with the child for a greater part of the day. 

66. The Judge held that in order to make the father’s proposal work there would of necessity need to be a great deal of co-operation between the parties and that this would need to be more extensive than the type of co-operation envisaged for joint custody.  She did not see much evidence of that here.  Much the reverse.  The Judge found that the atmosphere within the matrimonial home had at times been extremely tense and that this had been carried over in the way in which the parties communicate with each other.  The mother has very little time for the father as things presently stand.  The Judge found that they had difficulty on agreeing on nearly everything.  The Judge accepted that the mother would find it very difficult to arrange her life in the way depicted by the father.

67. Her conclusion was that the child’s best interests would be served by him spending time with both parents on a regular but not necessarily equal basis.  She ruled that the mother should continue to be the main caretaking parent.

The proper approach

68. Until Hong Kong introduces residence orders by legislation, it is not helpful for me to enter into any discussion as to what extent a shared residence order is the same as a joint custody, care and control order.  From the material I have just referred to, there are fundamental philosophical differences between the two types of orders.  For the purpose of this case it is also not necessary for me to do so.  The issue in the father’s appeal is simply whether a joint or shared care and control is the appropriate order to be made in the present case.  In addressing this issue it is necessary to bear in mind the limited role of the Court of Appeal in appeal concerning custody, care and control and welfare of a child such as this.  In line with the exercise of a discretion, there are often two or more possible decisions, any one of which might reasonably be thought to be the best, and any one of which therefore a judge may make without being held to be wrong : per Lord Fraser of Tullybelton in G v G (Minors : Custody Application) [1985] 1 WLR 647.

69. The two fundamental considerations relied upon by the Judge, namely, the mother being the primary caretaker and the father’s proposal is not practicable formed the foundation of the judgment.  Unless the father can demonstrate that the decision is plainly wrong then the mother is entitled to have sole care and control of the child.

70. The underlining theme of the father’s appeal is that joint or shared care and control does not have to mean that the time shared by the child with the parents must be on an exactly equal basis.  It was submitted by Mr. Coleman S.C. who appeared with Ms Rattingan, counsel for the father, that the Judge seemed to have decided that the child’s best interest is not served by the father’s proposal which would entail the child spending his time with the parents on an equal basis.  It was further submitted that the interim arrangement has always based on sharing by the parents.

Issue of practicality

71. My view is that the Judge had not erred at all.  While at paragraph 40 of the judgment the Judge said that the child’s ‘best interest would be served by him spending with both parents on a regular, but not necessarily equal basis’, she clearly was aware that the issue is not simply a matter of equality of time but the practicality of implementing the father’s proposal.  I agree with her view which I have already set out.

Co-operation

72. As to the co-operation between the parties the father argued that it was wrong for the Judge not to grant joint or shared care and control on the basis of lack of co-operation because, first, the Judge had already found that there was a sufficient level of co-operation to justify joint custody, second, it was inconsistent with the Judge’s own findings and third, relying on H v A [2005] 1 HKFLR 304 it would be wrong to allow the mother’s refusal to co-operate as a basis for awarding her sole care and control.

73. The Judge had said that the parents had been able to co-operate on matters relating to child when she was addressing joint custody.  She referred to matters such as the child’s school, after-class activities and on the child’s bed-wetting problem.  But I do not consider that the Judge was inconsistent when she lamented on the lack of co-operation when it comes to care and control which clearly would involve closer contact and co-operation of the parties.  The reality is that the parents had serious problems on agreement on almost everything.

74. The father in paragraph 14 of his second affidavit stated

‘ I want to point out that even with a shared and equal Order, I have no problem with Petitioner entering my home when I am not there to play and be with [the child] and, in fact, I would encourage her to see and be with [the child] as much as possible. I have no issue with this since it is my sincere hope to reach a point where we can both be in a position to see and talk to [the child] on a daily basis. In fact, I have expressed my desire to the Petitioner that even on her off days, we could and should have her over for dinner, activities, etc., if she so wishes. My desire is to have [the child] benefit from both of his parents as much as is possible under the circumstances.’

75. I accept that the father is a loving father and he wishes the best for the child, but in my view, and I say so with respect to him, his wishes are too idealistic and reveal somewhat a lack of acceptance that the marriage has in fact come to an end.  The scene he envisages will only happen if the parties are on good terms which is no longer the case.  When the mother has clearly said she no longer has any concern for the father, the type of contact he envisages would only exacerbate the conflict and tension that have already existed.

76. H v A does not lay down any principle on co-operation.  The Judge had not allowed the mother to use lack of co-operation as an excuse for not agreeing to a joint or shared care and control order.  The Judge had properly assessed the reality of the situation and come to the view that such an order would not work on practicable terms.  Her view cannot be faulted.  When the Judge said that she ‘accept that, in an ideal world (the child) should see and spend a great deal of time with his father’, it does not indicate any inconsistency in her approach.  This is the view of an experienced family Judge addressing the problem of the conflict between reality and the ideal.  I entirely agree with the view that orders made by the Family Court are meant to provide practical solutions to the practical problems faced by separating families : they are not meant to be aspirational statements of what would be for the best in some ideal world which has little prospect of realisation : per Baroness Hale at [38] in Holmes-Moorhouse.

Conclusion

77. I would dismiss the father’s appeal.

Costs

78. I would make a provisional costs order that the father is to pay the mother the costs of these two appeals.

Hon Hartmann JA :

79. I agree fully with the findings of Cheung and Kwan JJA.  However, concerning the issue of relocation, as we are setting aside the determination of a judge of the Family Court of the highest reputation, I believe that some brief comments are required as to that matter.

80. As I have understood it, the judge refused the relocation application by the mother on two grounds.  The first was the fact that, in the view of the judge, the plan of relocation proposed by the mother was simply too uncertain and therefore unsatisfactory.  The second, was the concern of the judge that the mother was attempting to distance the child from the father’s love and care.

81. As to the mother’s plan for relocation, it was of course uncertain in a number of respects.  But in the circumstances, with the mother seeking a very particular type of employment in the field of veterinary medicine in the United States and not having yet secured a post, in part no doubt because she is still in Hong Kong, the plan was bound to contain uncertainties.

82. For my part, the need for a set of rational relocation proposals is to ensure that the parent is not simply seeking to flee without concern for practicalities and thereby putting the interests of the child at risk.  In the present case, when matters are considered in the round, it is apparent, I believe, that the mother is not simply seeking to flee without heed of practicality.  She is seeking to relocate to that part of the United States from which both she and her husband originate, where both have families, where both grew up.  In that respect, she is seeking to return ‘home’, to the shelter and care of both her extended family and, in so far as may be necessary in the interests of the child, to the shelter and care of the father’s extended family.  There is no suggestion that she will be without funds.  In respect of capital, that is not yet available to her for the purposes of buying a home, not until court proceedings are finalised.  But the mother does have a plan to stay with her own mother, initially at least while she is looking for employment.  There are schools in the area which are able to take the child even if the child has not yet been booked into one of them.  They are educational institutions of different complexions but there is no suggestion that the mother, in consultation with the father, will not be able to choose one that is appropriate.  In this regard it is to be remembered that both parents are highly qualified and clearly understand the importance of education.  If the mother finds a job at some distance it may be necessary to move the child but that of itself is not critical.  There is nothing to suggest that the child is not an average robustness and will not adjust.

83. The mother’s relocation proposals, it seems to me, are entirely acceptable.  She will be returning ‘home’ in the sense that I have described.  Initially, while she seeks employment, she will be staying with family.  During that time, the child will have schooling available as well as the benefit of spending time with extended family.  When the mother has found employment, if it is necessary to move to a new place, there is no reason to think that she will not do so in an entirely rational and planned manner, making sure that the child’s best interests are secured.  There is nothing in the mother’s history to suggest that she acts with blatant irresponsibility in respect of the child.

84. In respect of relocation applications generally, there will, of course, be many occasions when the court is obliged to look carefully to the specific details of a plan to relocate and a lack of specific detail will be fatal.  Each case is unique, each must be determined according to its own circumstances.  In the present case, however, looking to all matters in the round, including the proven character of the mother as a responsible parent, I believe that the judge regrettably fell into error in looking too much to the lack of detail and too little to the broader imperatives which show the plan to be entirely understandable, rational and one that will protect the interests of the child.

85. As for the second ground upon which the application to relocate was refused, namely, the concern that the mother was trying to exclude the father from the life of the child, I can find no basis for this.  Recent history shows that, whatever her misgivings as to the wisdom of what has been done, the mother has worked closely with the father to ensure that he has maintained an intimate bond with the child.  The fact that the mother wishes to distance herself from the father does not mean that she wishes to exclude the child from his life.  There is no suggestion that she will do so.

86. It is almost always the case that applications to relocate are distressing.  It results in removing a child from the daily care and love of one parent.  In the present case, it is evident that the father wishes always to be intimately involved in the upbringing of the child.  There is nothing to suggest that he is not in all respects a competent and admirable father.  But the fact remains that his marriage to the mother is ended.  Both are entitled to forge new and independent lives.  There is nothing that can be criticised in the mother’s desire to leave Hong Kong, a place to which she came purely by reason of the husband’s employment.  Indeed, with the husband being employed by an international organisation, whatever his present intentions, there is nothing to suggest that Hong Kong is a permanent home for him.

87. In my judgment, this was plainly an application to relocate which should have been granted.

Hon Kwan JA :

88. I gratefully adopt the narrative of facts and the summary of legal principles on relocation applications in the judgment of Cheung JA.

89. I find this a most difficult decision, not least because this is an appeal from the exercise of discretion by a respected and experienced judge in family matters.  I am keenly aware of the impact of this decision on the child and his parents.  In the exercise of discretion, there are often two or more possible decisions, any one of which might reasonably be thought to be the best, and any one of which therefore a judge may make without being held to be wrong (G v G (Minors: Custody Appeal) [1985] 1 WLR 647 at 651F to G, per Lord Fraser of Tullybelton).  The balance between granting and refusing the application to relocate could be a very fine one.  Unless the appellate court is satisfied the judge is plainly in error, it should not interfere with her decision.

90. The mother in this case has been the primary carer since the birth of the child.  The court should not interfere with the reasonable proposal of the primary carer unless there is compelling reason to the contrary (Chamberlain v. de la Mare (1983) 4 FLR at 443C, per Ormrod LJ).  To guard against too ready an acceptance that the primary carer’s proposal is compatible with the child’s welfare, the courts have posed these two questions as a discipline: (1) is her application for relocation genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life; and (2) is her application realistic in that it is founded on practical proposals well researched and investigated (Payne v. Payne [2001] Fam 473 at 488C to D, para. 40, per Thorpe LJ).

91. The judge did not find that the mother’s motivation for relocation was not genuine, or that her intention to return to her homeland was attributable to a selfish desire to bring contact between the child and father to an end.  In paragraph 63 of the judgment, the judge summarised the reasons for her conclusion why the application should be refused. She took the view that the mother’s plan is neither well researched nor investigated.  She was also concerned that the application does in part seem to be motivated by a desire to simply get away from the father.

92. The judge analysed the mother’s plan in paragraphs 52 to 62 of the judgment. The mother’s proposed interim arrangements are to stay with her mother in Shelton, Connecticut, in the home where she was raised.  There are three schools in the Shelton area that the mother had visited and they would be suitable for the child. Her mother, who occasionally baby-sits her other four grandchildren in Massachusetts, has expressed willingness to look after the child if and when that should be needed.  The interim arrangements may change, as the mother intends to undertake a veterinary pathology programme for three years, and this would enable her to train and work in a paid job at the same time.  Her plan for accommodation and childcare would depend very much on her plans longer term for work and study.  Her difficulty is that she has not been able to secure a position at an institute for the veterinary pathology programme when her application was heard in July 2009 or when the appeal came to be heard in May 2010.

93. The judge was critical about the lack of documentary evidence in support of any application for the veterinary pathology programme, the lack of detail for job application, the lack of information regarding accommodation longer term, the lack of consideration to childcare if the mother and child should move away from Shelton, and the absence of proposal for access arrangements to ensure that contact between the father and the child would be maintained on a regular basis.  Due to the vagueness of the mother’s plan longer term, the judge found that her plan is neither well researched nor investigated.

94. The mother’s application for ancillary relief has not yet been determined.  Until financial arrangements have been dealt with, the mother does not have enough means to purchase a home.

95. It is understandable that the mother’s plan for longer term is vague at this stage.  But what is clear is that she does have a clear objective, and that is to pursue a programme in veterinary pathology.  There was no suggestion this is in any way unrealistic.  The mother completed her degree course in veterinary studies in Canada whilst she had the child with her on her own.  There is no reason to think, given her resourcefulness, that she might not be able to manage her time and care for the child properly when she is to undertake the programme in veterinary pathology.  It is all too easy to criticise and pick holes when the mother is unable to be more specific on her plan for longer term. She has shown herself to be a responsible parent.  Once she has obtained a position for her study programme at a suitable institution, she should be trusted to make other plans in the best interest of the child on an appropriate school, childcare, accommodation and access for the father.

96. Considering all the circumstances, I do not think it right to conclude that her plan overall is neither well researched nor investigated.  The judge has plainly fallen into error in reaching a contrary conclusion in this respect.  This went beyond the balancing and evaluation of relevant factors, which is a matter for the trial judge.

97. It is appropriate to intervene in these circumstances.  I too would allow the appeal against the judge’s dismissal of the relocation application.

98. On the father’s appeal against the order giving sole care and control of the child to the mother, I am in entire agreement for the reasons given by Cheung JA that the appeal should be dismissed.

99. I agree with the orders of Cheung JA for the disposal of the two appeals.