YCR also known as CRY v. YSJ nee SJE

CAMP 195/2025, [2026] HKCA 933

On Appeal From [2025] HKFC 96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 195 OF 2025

(ON AN INTENDED APPEAL FROM FCJA NO. 2423 OF 2018)

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[Children Relocation]

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JUDGMENT

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Hon Cheung JA (giving the Judgment of the Court) :

I.  Renewed application for leave to appeal

1.  This is the renewed application by the 1^st applicant (‘the Father’) by summons issued on 2 October 2025 (‘the Summons’) for leave to appeal against the judgment dated 26 May 2025 (the ‘Judgment’) of H H Judge Thelma Kwan (‘the Judge’), who ordered, among others, that :

1)  The 2^nd applicant’s (‘the Mother’s) application for leave to relocate the two children of the family to British Columbia, Canada, be granted with immediate effect;

2)  Joint custody of the children shall continue to stand;

3)  On relocation, care and control of the children be granted to the Mother.

[(‘the Relocation Order’)]

2.  The Judge had dismissed the Father’s application before her for leave to appeal.

3.  The Father now also applies for 1) leave to adduce fresh evidence for his application for leave to appeal and 2) for interim stay of the proceedings and the Relocation Order.

4.  The application is opposed by the Mother.

5.  Having considered the matters, we are of the view that the application can be appropriately dealt with on paper without an oral hearing pursuant to Order 59, rules 2A(5) and 14A of the Rules of the High Court, Cap. 4A. We now hand down our judgment.

II.  Background

6.  The background facts of this case have been set out at [3]‑[17] of the Judgment. We do not need to repeat them.

III.  Grounds of appeal

7.  The Father raised four intended grounds of appeal before us. They may be summarized as follows :

1)  The Judge erred in law by deciding that the principle of a return home application by a primary carer should be considered a lower bar to cross than otherwise applied in this case (Ground 1);

2)  The Judge failed to give sufficient weight to the children’s wishes (Ground 2);

3)  The Judge failed to give sufficient weight to the impact relocation would have on sibling relationship (Ground 3);

4)  The Judge failed to exclude evidence of witness dispute coaching and failed to provide transcripts (Ground 4).

IV.  Principles

8.  Under section 63A of the District Court Ordinance, leave to appeal will only be granted if the applicant satisfies the Court that the intended appeal has a reasonable prospect of success, or there is some other reason in the interest of justice that the appeal should be heard. In respect of the first limb, reasonable prospects of success involve the notion that the prospects of succeeding must be ‘reasonable’ and therefore more than ‘fanciful’ without having to be probable: SMSE v KL [2009] 4 HKLRD 125, at [17].

9.  A relocation order made by the judge is an exercise of discretion. It is well established that in challenging the exercise of discretion, it is not enough to establish that the appeal court might have made a different order. It is only where the discretion was wrongly exercised when, for example, the Judge has erred in principle, taken irrelevant factors into account, ignored relevant factors or where the decision is plainly wrong, or that the decision exceeds the generous ambit within which reasonable disagreement is possible, would the appeal court interfere: (YSG (YX) v LYAG [2023] HKCA 1319, [27]).

10.  Insofar as a party seeks to challenge the judge’s findings of fact, it must be shown that the judge had gone plainly wrong, such as his evaluation was tainted by a misapprehension of facts, or that he took into account irrelevant matters or failed to take into account relevant matters, or that his conclusion was one that is outside the generous ambit within which a reasonable disagreement is possible, before the appeal court would interfere: YSG (YX) v LYAG (supra), [28].

11.  As emphasized in Wong Myra Repizo v Ling Fung Coach and School Service Co Ltd & Another, CACV 64/2015, unreported, 7 December 2015 at [21], the complaints lodged should not, in substance, be mere regurgitation of the points run before and rejected by the Judge at trial and at leave application.

12.  In Re W (Permission to Appeal) [2008] 1 FLR 406 the English Court of Appeal summarised the approach on granting permission or leave to appeal in the context of an application involving children. Wall LJ at [20] stated that leave to appeal shall be granted where any of the four questions below is answered in the affirmative. Subject to the caution that the established test in Hong Kong is whether the appeal has any reasonable prospect of success (which is not different from the reasonably arguable test), the four questions are applicable here as well.

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

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

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

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

V.  Our view

1)  Ground 1

13.  The Father argued that the Judge failed to take into account that this was not a primary carer returning home application because pursuant to the order dated 8 November 2018, the parties were granted shared care and control of the children on a week‑on/week‑off arrangement.

14.  The Judge held :

‘ A Return Home Application

180. [The Mother] says this is a return home application, I agree. [The Mother] is Canadian, she was born and raised in Kelowna, her family is in Kelowna and nearby, she has worked there as a teacher, kept contacts in professional and personal capacities, and know Kelowna well.

181. It has often been said that a return home application by a primary carer of the children should be considered as a lower bar to cross than otherwise Re R & H [Child Relocation [2008] 2 FLR 1667] per Thorpe LJ at §9:

“… 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.”

Even if the [the Father] were to argue that [the Mother] is not the primary carer and their stay in [Hong Kong] is not brief, I take the view that this principle still applies as the rationale is obvious. The familiarity of the applicant to a previous home base, the knowledge of the proposed place of residence and the community will make transition easier for children in general; the presence of family members in providing support for the applicant and care for the children are additional factors to take into consideration. All of these elements are present in the [the Mother’s] application.’

15.  In our view, this point is not reasonably arguable. Whilst reference was made by the Judge to Re R & H (Child Relocation), all that she was saying was that this is a situation where the Mother is relocating with the children to a familiar environment, a lifestyle that they are familiar with together with the presence of family support. These are factors that the Judge is plainly entitled to take into account in the evaluation of the Mother’s application.

2)  Ground 2

(1)  The merits

16.  The Father submitted that the Judge failed to give any or sufficient weight to the wishes and feelings of the children. The children were aged 13 and 9 at the time of the trial. In the Social Investigation Reports, it was reported that the elder child expressed that ‘he would only go to Canada if both parents relocate’ and that the younger child had stated that ‘if he moved to Canada while his father did not, it would be very hard for him’. The Father argued that the Judge further erred in failing to meet the children despite the Father’s requests for the children to meet the Judge on multiple occasions, including the second day of trial and despite the Social Welfare Officer confirming that the children were mature enough to meet the Judge. While the Judge correctly noted that the children’s wishes are one of the factors to be considered in her balancing exercising, she placed excessive weight on the Mother’s evidence of the educational support the elder child will obtain in Kelowna, Canada over the children’s clear wishes despite the children’s ages and maturity. Reference was made by the Father to cases like YSYM v LHB [2020] HKCA 586; Re S (Minors) (Access; Religious Upbringing) [1992] 2 FLR 313 CA; Y v L [1998] HKFC 1; NAV v JTMW [2017] HKFC 24 and E v F [2018] HKFC 130.

17.  In our view, this ground is not reasonably arguable. The Judge had fully dealt with this in the Judgment.

‘ 215.  I am very conscious of the Children’s wishes as reported by the [Social Welfare Officer]. Children’s wish is only one of the several factors that I need to take into account given, in particular, [the elder child’s] age. I understand the Children want both parents to be in the same place; as would most children who go through their parents’ divorce, and those who may need to face a change of residence to a different country. But as reported by Dr C, [the elder child] lacks insight into “the nature, severity and impact of his attention problems on his learning … and to a lesser degree, his conduct”. This will in turn negatively impact his performance in an academically focused environment. Having considered this and weighing against other factors, the Children’s wishes in my view do not tip the scale in my overall assessment of this case and my decision to let them leave for Canada.

216.  I have not forgotten [the younger child], and there is no doubt that he is a bright, friendly, outgoing child who is doing well academically and engaged in diverse extracurricular activities. A child who does well at school will do well in any education institution. The [Father’s] objections put education in Canada in a most inferior position compared to Hong Kong. I recall that that both Children have expressed their wishes to continue their university education in Canada, and [the Father] did not contest their views.

217.  I have considered the [Social Welfare Officer’s] recommendations. It is his findings that [the Mother’s] application is genuine and not intending to exclude [the Father] from the Children’s lives, and that her relocation plan is sound. The only hesitation he has on both occasions is the Children’s reaction and therefore he could not support the application at this stage, he therefore urges the parents to discuss a future date for the Children to go to Canada. Indeed, the [Social Welfare Officer] has said that both Children presented to have no obvious difficulties staying either in [Hong Kong] or Kelowna. I repeat here that [the Mother’s] has actually elicited from the [Social Welfare Officer] that if support to [the elder child] is not sufficient in [Hong Kong], and Canada can provide the education system to provide his needs, his recommendation may be different. The [Social Welfare Officer] also says that he feels that the strong connection between [the Father] and Children can be maintained if relocation is granted given the history of the care and control arrangement, the cooperation between the parties and the [Mother’s] access proposals.’

18.  The important point here is that the elder child requires special education needs and those needs will no longer be available to him if he continues his education locally. By contrast, the school he will be relocated to will supply him with the needs. Ultimately, the Judge was exercising a balancing exercise that cannot be criticised as plainly wrong. The facts of each case are different. What is relevant for the Court’s consideration is the principle and not the result of a case that may be based on different facts and considerations. The Judge had given reasons why she departed from the view of the Social Welfare Officer. Her view could not be faulted. Whether the Judge would see the children was a matter of discretion for her. If the views of the children are already reflected in the materials before her, it is not reasonably arguable that she is required to meet them separately.

(2)  New evidence

19.  Relevant to the issue of the children’s wishes, the Father had sought leave to adduce new evidence contained in his affirmation filed on 20 October 2025 (‘the New Evidence Affirmation’). Before new evidence may be admitted in the Court of Appeal, generally three conditions (‘the Ladd v Marshall conditions’) have to be satisfied:

i)  the further evidence could not have been obtained with reasonable diligence for use at the hearing below;

ii)  the further evidence is such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and

iii)  the evidence is such as is presumably to be believed.

20.  As leave to appeal is being under consideration, our task is to assess provisionally whether these three conditions could be satisfied.

21.  The new evidence is identified at [8] of the New Evidence Affirmation, (namely ‘YCR‑1’ to ‘YCR‑3’) :

i)  Whatsapp conversation record between the Mother and Father dated 6 September 2025. The Father claims the conversation took place after the elder child left the Mother’s house and refused to return until she agreed to stay in Hong Kong (‘The Runaway Incident’) (‘YCR‑1’);

ii)  Email correspondence between the Father, Mother and the younger child dated between 15 to 23 September 2025, and email correspondence from Father to Mother highlighting the children’s wishes to remain in Hong Kong with follow‑up regarding the Runaway Incident dated 25 September 2025 (‘YCR‑2’); and

iii)  A handwritten letter from the children stating that they do not wish to leave Hong Kong until they finished school in Hong Kong.

22.  The Records and Letter are dated after the issuance of the Judgment on 26 May 2025, and arose from events and reactions from the children after the Relocation Order was made. There is also no challenge to the authenticity of the documents.

23.  We do not find the Records and Letter helpful to the Father’s case.

24.  Firstly, at its highest, it does show the children do not wish to relocate to Canada at this time, and their distress over leaving their Father in Hong Kong resulted in one instance the elder child leaving the Mother’s home. The evidence does not show a chronic pattern of upset behaviour. There is no expert psychological evidence showing the elder child’s distress is at a level which should outweigh his educational needs.

25.  Secondly, there is no evidence from either the Social Welfare Officer or Dr C, that the emotional distress which may result from relocation would be traumatic or would outweigh the importance of the pending special learning needs of the elder child. This is especially so, given the evidence of the Social Welfare Officer that she does not have knowledge as to the curriculum of the school that the elder child is attending, and her answer set out in [217] of the Judgment that if there is sufficient information to show that Hong Kong does not have sufficient support in terms of the treatment provided to the elder child for his special needs, her recommendations would be different. Given the expert testimony about the fact that structural limits in the provision of support for the elder child at his school are likely to decline and eventually face the risk of ‘managing out’, we are of the view that this goes towards the condition under which the Social Welfare Officer identified for changing her recommendation.

26.  Although the children’s wishes strongly advocate for staying in Hong Kong until they finish school, the Judge had already explained her views towards this in relation to the elder child :

‘ 211. What [the Mother] has done in this application is to pre‑empt a situation where [the elder child] may have to suffer the fate of diminishing support at school, struggling in class trying to catch up or face the eventuality of being “managed out”. [The Mother] puts this in her opening submission:

“When the above educational needs are better met in Canada, the children’s emotional needs will follow suit. The additional of extended familiar presence and support will bolster that which is already provided by their parents and immediate family. [The elder child] in particular will enormously benefit from being in a school which accepts his learning differences and gives him the opportunity to excel.” ’

27.  In relation to the wishes or needs of the younger child, we repeat [216] of the Judgment below.

28.  For the above reasons, we are therefore of the view that the Records and Letter would not have an important influence on the Relocation Order, and thus do not satisfy the second condition of Ladd v Marshall.

29.  We also do not see any good reason in the present case to exercise the Court’s residual discretion to permit the Father to adduce the Records and Letter. We refuse to allow the Father to use the new evidence.

3)  Ground 3

30.  As to Ground 3, the Father submitted that the Judge failed to give sufficient weight to the impact of the children’s relationship with their half-brother, C.

31.  This ground is not reasonably arguable. This argument was addressed by the Judge at [176] of the Judgment below :

‘ 176. [The Father] says that letting the Children relocate will cause a breakdown in the relationship between them and their half-brother C. [The Mother] contends that C was only 16 months at the time of the hearing, and that the Children do not get to see him that often. From [the Mother’s] cross examination of [the younger child], she accepts that during the week when they are with [the Father], the Children left before C wakes up and the Children return late from activities in school, and C may only attend their games once or twice a month during the weekend. [The Mother] therefore says the [the Father’s] alleged extent of damage caused to C from the relocation of the Children has been “hyperbolized”. I tend to agree. I acknowledge that relationship between siblings and half siblings are important, but it is difficult to accept, on [the Father’s] say‑so, that there will be “profound emotional distress and development challenges for all his children.” ’

32.  The Social Welfare Officer described the relationship between the elder child and younger child to be ‘good and close’. Given the Mother’s generous offer in terms of holiday time and remote access, and that there is no allegation that the Mother had been obstructive in access at all, we are of the view that the Judge did not err in concluding that the Father will be able to maintain his relationship with the children together with C.

33.  The Judge acknowledged that there will be a change in the amount of time the Father would be able to spend with the children (and consequently, the same would apply for C). However, given the generous share of the children’s holidays for the Father, the nature of the Father’s job to allow for more time spent with the children, and his past history of being able to make trips for home visits in Canada, it is not reasonably arguable why this would not continue, for the benefit of the relationship between the Father, the children, and also for C.

34.  When assessed against the overall evidence, the Judge’s decision on the weight to be attached to this factor in Ground 3 cannot be faulted. We find no merit in this proposed ground.

4)  Ground 4

35.  The Father complains that the Judge erred in excluding or placing less weight on the evidence of the Mother’s partner because of alleged ‘witness coaching’ by the Mother during trial.

36.  The Judge had set out her findings extensively on this issue at [151]‑[163] of the Judgment. We are of the view that the allegations of the Father are unfounded. There was no admission of such behavior, and it was specifically denied by the Mother’s partner during trial.

37.  With regard to the parties’ right to transcripts, the Judge has properly dealt with this point at [67] of the Decision. Transcripts are not meant to be given out for every single hearing, and even lay persons are expected to take notes from their court hearing.

38.  Ground 4 bears no merit.

VI.  Conclusion

39.  For the above reasons, we are not satisfied that any of the Father’s grounds of appeal have any reasonable prospect of success and we are not satisfied that the Judge’s decision was plainly wrong. The Summons is dismissed. As leave is refused, there is no basis to stay the Relocation Order.

40.  The Father’s application for leave to appeal is totally without merit. We therefore make an order that no party may request the present determination refusing leave to appeal to be reconsidered at an oral hearing inter partes pursuant to Order 59, rule 2A(8) of the Rules of the High Court.

VII.  Costs

41.  This being a children’s matter and the parties acting in person, we make no order as to costs of this renewed application. The costs order below is not disturbed.