S S v. P S

FCMC 712 / 2014

[2022] HKFC 134

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 712 OF 2014

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J U D G M E N T
(Relocation)

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1.  I refer to the Petitioner mother as ‘Mother’ and the Respondent father as ‘Father’ respectively. The court is concerned with the welfare of the two children of the family, namely, RA (a girl born in October 2006) and JY (a boy born in April 2010) (collectively ‘the children’).

Background

2.  This is the trial of: -

(a)  The Father’s summons filed on 22 June 2021 for leave to relocate the children to England;

(b)  The Father’s summons filed on 30 July 2021 to vary the order dated 14 September 2020 so that the children will spend time with the parents on a two-week alternating basis during term time, in the event that the Mother moves to England should the relocation be allowed, or in the event that the relocation is not allowed and the children remain in Hong Kong;

(c)  The Mother’s summons filed on 22 December 2021 for an order that the Father be restrained from any enrolment and further actions with any UK schools pending the trial judgment and following appeal, if there will be any by either side, a full clinical psychiatric evaluation of the Father and a psychological evaluation of the children before trial.

(d)  The Father’s summons filed on 21 January 2022 for an order that the Father be permitted to keep the children enrolled at the schools in England and, in the event that relocation is allowed, the children be permitted to attend the schools in England.

3.  The Father is India origin, aged 45, a professional investor working from home. Having lived here since 1998, he is a permanent resident in Hong Kong. He has family in India and in England. The Mother is British, aged 51, a teacher, having lived here for 23 years, a permanent resident in Hong Kong. The parties met in 1999 and were married in 2005. The children were born in Hong Kong. The children and the Mother have British passports and the Father holds the Hong Kong SAR passport.

4.  The parties were divorced in 2014. By the consent order dated 5 August 2014, the parties have joint custody and shared care and control of the children and they have agreed that they will be parallel parenting. By the consent order dated 23 October 2014, the parties have reached a clean break of the financial matters, each having received HKD17.7 million. The parties have agreed and undertaken that they will each contribute 50% of the costs for the children such as school and university fees, school trips and excursions, medical expenses, extracurricular activities, healthcare costs, and the children’s living costs when they are staying with them. The Decree Absolute was granted on 29 October 2014. By the consent order dated 13 October 2016, arrangements were made for sharing of holidays. The children have been dividing their time equally between the two households on a 5/5/2/2 basis up to September 2020. By the consent order dated 14 September 2020, the children spend equal time with each parent on a week-on/ week-off basis during term time, with changeovers each Friday. The change was precipitated by the wishes of the children and has been the arrangement up to-date.

The Father’s first application and the present application

5.  The Father was concerned about the social unrest and violent protests started in or about June 2019. The children became anxious, frightened of going out and were extremely distressed by the violent protests and demonstration. The children’s schools were closed. On one occasion RA’s school bus was abruptly stopped on the road by protesters. The Father decided that it was no longer in the children’s best interest to remain in Hong Kong. On 16 September 2020, the Father filed his first summons for leave to relocate the children to England. By the summons filed on 6 November 2020, the Mother in turn sought an order to have the Father’s application stayed or adjourned due to the uncertainties of the Covid-19 pandemic and Brexit. Later, when the Father became aware of that the capital gains tax rate in England might significantly rise in the near future, as recommended by the UK’s Capital Gains Tax Stage 1 Report, which meant that the Father’s after tax income would be very much reduced, he feared that it would not be financially feasible for them to relocate to England. He withdrew the summons filed on 16 September 2020 in November 2020. After having done more research and consulted with UK tax lawyers and having learned that it should be possible for him to structure his financial affairs in such a way as to mitigate what would otherwise be a very significant tax liability, he renewed the application for leave to remove the children to live in England.

The Mother’s positions

6.  The Mother suggests that she having always been actively involved in terms of day to day physical and emotional care of the children, the court should dismiss the present application to protect the children’s most important right to have both parents continuously and on a daily basis involved in their lives. She is deeply concerned that the children and she will have difficulty in keeping in close contact as they do now and it will not be even remotely the strong bond as they have now if relocation is granted. The children are well settled in Hong Kong, happily and thriving, socially, academically and personally. She suggests it is in the best interests of the children to keep this stability and equilibrium of them seeing both parents on a regular basis. The Mother is extremely critical of the Father’s mental health and his capability to take care of the children and to meet their needs. She stresses that the Father has never lived with the children outside of Hong Kong. She seeks an order for a full clinical psychiatric evaluation of the Father and a psychological evaluation of the children to determine their understanding of the meaning of such a relocation. The Mother suggests that the Father’s application is made out of his own selfish desire to obtain a UK passport, the Father’s access proposal is impractical and unreasonable, the Father’s application is premature and his relocation plan is not well thought through or researched. The Mother proposes that the children stay in Hong Kong and the parties continue co-parenting the children for a few more years until the children go to a university of their choices.

7.  The Mother prays for the dismissal of the Father’s application, but she puts forward the alternative option that the Mother moves to England together with the children at the same time. She suggests that this is a reasonable solution should relocation be granted as that will allow the children to have both parents in their lives as they are used to. In the scenario that the Mother moves to England, despite that the Mother accepts that she can afford to live in England out of her own resources, the Mother seeks support from the Father to cover her accommodation, living expenses and to compensate her financial losses as detailed in her letters dated 2 March, 4 March, 18 March and 25 March 2022 to the Father and the paragraphs 102 to 119 of the Mother’s Opening.

8.  By the summons dated 20 April 2022 and returnable on 13 June 2022 and her 9^th Affirmation dated 20 April 2022, the Mother seeks from the Father the children’s school fees and expenses in England, the children’s health insurance in England, a lump sum to cover the Mother’s losses and relocation expenses, the rent of her accommodation of a similar living standard to the Father in the UK. Much to the Mother’s chagrin, the Father considers that the Mother is financially secure as a result of the settlement upon divorce, furthermore, there is no legal basis for the Mother’s demands for the Father’s financial support for the mother’s relocation to England, payment for her accommodation, living expenses or compensation for her alleged losses. In view of the Father’s position above versus the Mother’s position that she will not relocate to England with the children without the Father’s financial support, it is clear that the Mother’s proposal that she moves together with the children is a non-starter at least so far as the present proceedings are concerned. As such, I shall proceed to deal with the present applications on the premises that the Mother will not move to England together with the children even if the Father’s application is granted.

Issues

9.  The main issues to be considered are likely to include: -

a)  Should permission be given for the children to leave Hong Kong in order to be relocated to England with the Father?

b)  What care and control access arrangements should be put in place once the question of care and control and the Father’s application for relocation is determined?

The evidence

10.  A lot of evidence was adduced. Both parties and the Social Work Officer testified. The Father filed his 4^th Affirmation on 16 September 2020, 5^th Affirmation on 29 September 2020, 6^th Affirmation on 22 June 2021, 7^th Affirmation on 30 July 2021, 8^th Affirmation on 9 November 2021 and 9^th Affirmation on 21 January 2022. The Mother filed her 5^th Affidavit on 6 November 2020, 6^th Affirmation on 30 September 2021, 7^th Affirmation on 22 December 2021, 8^th Affirmation on 26 January 2022 and 9^th Affirmation on 20 April 2022. I also read the Social Investigation Report dated 30 December 2021 prepared by Ms Tsui. By consent, the preparation of an International Social Investigation Report was dispensed with.

The applicable law

11.  The general principles governing applications relating to children are set out in s.3 of the Guardianship of Minors Ordinance ‘GMO’) Cap. 13, which provide that: -

“3. General Principles

(1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property-

(a) in any proceedings before any court (whether or not a court as defined in section 2) the court-

(i) shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to-

(A) the views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

(B) any material information including any report of the Director of Social Welfare available to the court at the hearing; and

(ii) shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father;

(b) except where paragraph (c) applies, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and shall be exercisable by either without the other”

12.  The court of appeal has recently stated the applicable law in BA v BL (Child Relocation) [2019] 4 HKLRD 23 as follows: -

“4.1 Recently in respect of relocation applications this Court in ZJ v XWN (Leave to Appeal: Child Relocation) [2018] 3 HKLRD 644 adopted the approach of Black LJ of the English Court of Appeal in Re C (A Child) (Internal Relocation) [2016] Fam 253 at [26]:

  [26] … The only principle to be applied when determining an application to remove a child permanently from the UK is that the welfare of the child is paramount. Guidance from the Court of Appeal as to factors to be weighed in the search for what is in the best interests of the child, such as that in Payne v Payne
… is valuable in so far as it helps judges to identify factors which are likely to be of importance but it is not to be applied rigidly. …

4.2 This Court further held at [28] that:

[28] Whilst we respectfully agree with Black LJ that whatever guidance fallen from earlier cases should not be applied rigidly and Vos LJ's comment on the holistic approach, it is not mandatory for a judge in Hong Kong to set out the welfare checklist mechanically item by item to demonstrate that she has considered the same.

4.3 The Judge granted leave because she considered that guidance may be needed from this Court on applications made by parents who are not the primary carers of the children.

4.4 In order to understand the dispute on Payne and the Judge's reason for granting leave, it is necessary to go back in time to the cases before Payne. Very often in these cases the mother was a foreign national married to an English man and lived with her husband in England. She was usually the primary carer of the children and wished to return to her homeland together with the children to start a new life either on her own or in a new relationship. Payne was a case where the applicant mother had the residence order of a child of the family. Thorpe LJ at [26] stated:

[26] In summary a review of the decisions of this court over the course of the last 30 years demonstrates that relocation cases have been consistently decided upon the application of the following two propositions: (a) the welfare of the child is the paramount consideration; and (b) 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.

4.5 An observation of these earlier cases is that there was a tension between, on the one hand, a reluctance to interfere with the reasonable choice of the parent with custody as to how, and where, they should live and, on the other hand, the principle that the welfare of the child is the primary consideration in deciding whether to give that parent permission to relocate elsewhere. The conflict was reconciled by the recognition that the child's welfare was inextricably tied to the happiness of the custodial parent and the stability of the home that the parent could provide and the happiness and stability would be likely to be threatened if the parent was compelled to adopt a manner of life contrary to his or her wish. Hence in K v K (Children: Permanent Removal from Jurisdiction) [2012] 2 FLR 880 Black LJ at [97] stated:

    [97] I have found it helpful first to consider Payne v Payne

     in its historical context, which begins with Poel v Poel

  . In these early cases I detect a struggle to reconcile a disinclination to interfere with the reasonable choice of the parent with custody as to how, and in particular where, they should live with the undoubted principle that the welfare of the child is the primary consideration in deciding whether to give that parent permission to move to live outside the jurisdiction. The answer to the conundrum was found in the conviction that the child's welfare was inextricably bound up with the happiness of the custodial parent and the stability of the home that he or she could provide and that that happiness and stability would be likely to be threatened if the parent was compelled to adopt a manner of life that he or she reasonably did not want.

4.6 Although the last sentence of Thorpe LJ in Payne at [26] seems to suggest that the primary carer's application will be granted unless the Court concludes that it is incompatible with the welfare of the children, he clearly did not intend it to operate as a presumption. As he emphasised:

[40] However, there is a danger that if the regard which the court pays to the reasonable proposals of the primary carer were elevated into a legal presumption, then there would be an obvious risk of the breach of the respondent's rights not only under article 8 but also his rights under article 6 to a fair trial. To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother's proposals are necessarily compatible with the child's welfare I would suggest the following discipline as a prelude to conclusion: …

4.7 The discipline or guidance given by Thorpe LJ on the Court's approach on relocation cases which the Judge in this case adopted can be summarised as follows:

(1) Is the Mother's proposal genuine and realistic?

(2) Is the Father's opposition genuine? What is the extent of the detriment to him if leave is granted and how far may this be offset by the child's relationship with the maternal family and homeland?

(3) Impact on the Mother of a refusal of her proposal.

(4) The outcome of the second and third appraisals must be considered in the overriding review of the child's welfare as the paramount consideration.

4.8 Dame Elizabeth Butler-Sloss P in Payne also identified seven relevant factors to be weighed in the balance.

4.9 In SMM v TWM, while I together with Hartmann and Kwan JJA adopted the Payne approach, I emphasised at [32] that there is no presumption in favour of the primary carer when the all relevant factors are being considered.

4.10 Black LJ in K v K at [144] stated the Payne guidance is not a rigid principle so as to dictate a particular outcome. She specifically stated that Thorpe LJ had not intended there should be a presumption in favour of the primary carer's proposal to relocate:

  [143] Even where the case concerns a true primary carer, there is no presumption that the reasonable relocation plans of that carer will be facilitated unless there is some compelling reason to the contrary, nor any similar presumption however it may be expressed. Thorpe LJ said so in terms in Payne v Payne br /> and it is not appropriate, therefore, to isolate other sentences from his judgment, such as the final sentence of [26] ('Therefore her application to relocate will be granted unless the Court concludes that it is incompatible with the welfare of the children') for re-elevation to a status akin to that of a determinative presumption.

4.11 The controversy surrounding Payne is that some subsequent cases had treated Payne as prescribing a decisive emphasis on the impact on the primary carer of a refusal of leave.

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

4.13 This view continues and is maintained in Re C (Internal Relocation), per Black LJ at [26] which this Court adopted in ZJ .

4.14 In Hong Kong, the paramount consideration is whether the relocation is in the best interests of the child. Hence whether a relocation application is made by a primary carer or a non-primary carer does not give rise to any presumption in favour of or against the applicant. There may be myriad reasons why such a parent applies for the relocation of the child. Ultimately it is one of the factors to be considered in the overall assessment whether the relocation is in the best interests of the child and the weight to be attached to this factor depends on the facts of the case. The value of Payne is that it "identifies a number of factors which will or may be relevant in a relocation case, explains their importance to the welfare of the child, and suggests helpful disciplines to ensure that the proper matters are considered in reaching a decision but it does not dictate the outcome of a case", per Black LJ at [144] in K v K . In my view Payne is not to be jettisoned. The relevant factors provide a structured framework in which the appraisal is to be made holistically.

4.15 I have dealt with the situation of a single parent being the primary carer. In respect of the situation where the child's care is shared between the parents, I find the view of Black LJ in K v K to be helpful in that cases should not become bogged down with arguments as to the label to be attached to the way in which the particular parents had provided for the care of their children:

[145] … The ways in which parents provide for the care of their children are, and should be, infinitely varied. In the best of cases they are flexible and responsive to the needs of the children over time. When a relocation application falls to be determined, all of the facts need to be considered.”

13.  The court of appeal in YSYM v LHB [2020] HKCA 586 has recently emphasised the importance of a court taking into account the wishes of children in cases of this nature:

“71. Rix LJ had this to say in Re R (Residence Order) [2010] 1 FLR 509 at §§57 and 58:

“[57] The importance of listening to a child once he or she has reached the age of 10 … has been stressed in the authorities. Thus in Re L (A Child) (Contact: Domestic Violence) [2001] Fam 260, [2001] 2 WLR 339, [2000] 2 FLR 334 at 271-271, 347 and 340 respectively, Dame Elizabeth Butler-Sloss P sitting in this court cited with approval Contract and Domestic Violence - T–e Experts' Court Report [2000] Fam Law 615 at 624 on the subject of a child’s wishes:

‘… while this needs to be assessed within the whole context of such wishes, the older the child the more seriously they should be viewed and the more insulting and discrediting to the child to have them ignored. As a rough rule we would see these as needing to be taken account of at any age; above 10 we see these as carrying considerable weight with 6-10 as an intermediate stage and at under 6 as often indistinguishable in many ways from the wishes of the main carer (assuming normal development). In domestic violence, where the child has memories of that violence we would see their wishes as warranting much more weight than in situations where no real reason for the child’s resistance appears to exis
t.’

See also Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, [2006] 3 WLR 989, [2007] 1 FLR 961 per Baroness Hale at para [57]:

‘But there is now a growing understanding of the importance of listening to the children involved in children’s cases. It is the child, more than anyone else who will have to live with what the court decides.’

[58] I respectfully conclude that the judge has erred in not giving any real effect to the child’s wishes expressed in this case. He has referred to them, accepted them, but thereafter essentially ignored them. He has in effect wholly discounted them. And yet, the child was a mature and thoughtful child close to the age of 10, who expressed his wishes rationally and, in my judgment, with considerable emotional understanding. Moreover, those wishes, in part natural given his love for his mother and his successful upbringing to date – and therefore to be given all the more attention rather than discounted ... I do not understand why these well-evidenced concerns were overborne by a call for greater sophistication: in reality this was little more than a way to reinforce the judge’s conclusion that he would not disturb the boy’s “settled” status.”

14.  The court has a wide discretion in respect of children matters and the court will have to consider the facts of each particular case in order to carefully assess what may or may not be in the child’s best interests. By s 3 of the GMO, if there are any court proceedings in which a child is involved, the court shall regard his best interests as the first and paramount consideration.

15.  Both parties refer to the so-called ‘welfare checklist’. The checklist gives the following matters as those the court should consider in determining the appropriate orders to make: -

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

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

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

(d)  the likely effect on the child of any changes in the child’s circumstances;

(e)  the child’s age, maturity sex, social and cultural background and any other characteristics of the child that the court considers relevant;

(f)  any harm that the child has suffered or is at risk of suffering;

(g)  any family violence involving the child or a member of the child’s family;

(h)  how capable each of the child’s parents, and any other person in relation to whom the considers the question to be relevant, is of meeting the children’s needs;

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

(j)  the range of powers available to the court in the proceedings in question;

(k)  any other fact or circumstance that the court thinks is relevant.

16.  The checklist is applied with three caveats: (1) Judges may choose only those factors on the checklist which are relevant to the case before the court, as long as the judge’s decision, supported by reasons, is demonstrably in the best interests of the minor, he cannot be criticised for not going through all the factors one by one; (2) Judges are not subject to the laborious necessity of expressly relating their findings in every case to its specific provisions one by one; (3) It is not meant to be exhaustive: H v N [2012] 5 HKLRD 498 § 26 to 32

The views of the children

17.  The court has a duty to consider the children’s wishes pursuant to s 3(1)(a)(i)(A) of the GMO.

18.  The views of the children are presented to the court as one of the matters contained in the Social Investigation Report. In her report, Ms Tsui states: -

Views of the Children towards the Relocation Arrangement

RA

35. RA shared that she loved both parents very much. Regarding the relocation, RA repeatedly stated to the investigating officer that she wanted to and ready to study in England. She was an English-speaking student and did not speak Cantonese. Therefore, when the Mother had suggested her studying aboard before, she believed this might be a good opinion for her. After the protests in Hong Kong and she read the newspaper about the change of Hong Kong, she felt unsafe in Hong Kong and had a strong urge to study in England. She also felt hard to gain the stronger supportive feelings among the schoolmates in the current school as many of her friends had moved to England. Even she got along well with her schoolmates, she felt not so close with them and shared fewer common topics.

36. RA understood that the Mother concerned about her studying plan and supported her to study in England for tertiary education. However, she preferred going to England at an earlier stage. She had studied the information regarding studying in England from websites and discussed with her tutors. As she liked arts and with an aspiration to become a journalist, she preferred St. Mary's School because of her curriculums and activities. There were subjects like English, Art, Sociology etc. that she was much interested in, and those subjects equipped her with foundations for further development of her career. She also found that there would be a better bridging to the university for her favorite subjects when she had started studying the related subjects in junior school. She had showed confidence in getting the required results in GCSE for getting the offer from the St Mary's School. She expressed her view that if she failed to get into the St. Mary's School, she would keep on choosing ACS Hillingdon School as she did want to study in England for the better preparation of university studies.

37. RA shared with investigating officer of her visit to England in a family trip in 2017. She liked the living environment, culture, museums and many places there. RA revealed that she had also searched the information of the schools, the culture, the living and school environment of Gerrards Cross on the Internet. She understood the difference of living environment, transportation and culture between Hong Kong and England. She showed confidence in having good adjustment there. She reported to have good relationship with the Father. She would seek her Father's advice when she encountered problems. Besides, the Father and JY, the maternal grandparents and Father's relatives, who were in England, could provide them support.

38. RA wished her Mother could go to England with them. While she would be happy if the relocation order was granted and she could go to England, she would miss her Mother very much. She promised to keep close contact with Mother using video call like Skype particularly during holidays. RA shared that she had tried to talk to her Mother on her views. She understood that the Mother did not want to push her and cared about their feelings. She said that the Mother shared her views with her. However, RA still had a strong wish that the Mother, as her very important person, could support her and even go to England with her.

JY

39. JY said that he had gone to England before and he liked the country much. He said that he really wanted to go to England for study. Many of his friends had moved to England and he would like to get closer with them although he understood that they would be in different schools and live a long distant from Gerrards Cross if he lived there. Even so, he emphasized that he could get closer with his friends and shared common topics. For living in England, he showed strong confidence in adjusting the living environment even there were many differences between England and Hong Kong. He did not have much worry about the possible difficulties as he said he could gain support from the Father and RA. He said that he did not like Hong Kong much even he was born here. He felt hard to take the taxi or purchase things as not all people in Hong Kong spoke English as he could only speak English but not Cantonese.

40. He also questioned why the Mother did not go and reside in England with them as her family was also in England. As the Mother did not share with him on her views and concerns on her rejection for relocation or variation of access, he did not understand the mother's hidden reasons. When he realized that the Mother would like to keep close with them, he understood that the Mother cared about them much. He promised he would contact the Mother with video calls frequently in England just like they had daily access time in Skype currently.

41. He said that he did not fully understand the reasons why the Mother rejected the Father's proposal. He wished the Mother to share more with him. He also wishes the Mother would listen to his thoughts more and support their views.

19.  It is abundantly clear from Ms Tsui’s report that the children very much want to leave and they have held this wish and expressed it to their parents for more than 2 years. While she accepts that the children’s wishes are relevant, the Mother questions the weight they should be given. The Mother suggests that the children do not yet have the maturity to fully understand the impact over relocation and its implications, and she is concerned that the children have been strongly and unduly influenced by the Father over the matter. In her words, the Father made the children scared to live in Hong Kong, sent repeated and multiple emails to the children, sent videos of violence in Hong Kong and articles using scaremongering tactics and his incessant bombardment and harassment have the children now saying they want to go to England. Despite the Mother’s contention in the above, I take the view that it shows from Ms Tsui’s report that the children have carefully considered the intended relocation and their desire to move to live and study in England is the result of serious and well-thought-out decisions.

20.  Of RA, Ms Tsui states that she

“understood that the Mother concerned about her studying plan and supported her to study in England for tertiary education. However, she preferred going to England at an earlier stage. She had studied the information regarding studying in England from websites and discussed with her tutors.”

21.  In her e-mail to the Mother on 11 July 2020, RA wrote: -

‘I have been thinking for some time now and I have decided that it’s best to move. However I do not agree with any of my dad’s options lime Dubai (too hot), KL (I find it too dirty), Australia (too far away from England and India) and US (guns). So, I have come up with an option that might make my dad unhappy but this is what I want to do and this is what I am proposing.

I would really love to move to England, specifically London, and want to live near Lucas and Amber’s house…

If you don’t think there is a need to move, I understand but me and my dad will just move without you – I don’t intend this to be rude but I don’t feel safe in Hong Kong anymore and really want to live in England. The reason why I decided to send you an e-mail instead of speaking to you in person is because every time I try to talk to you about this, you shut me down and you neglect my thoughts, making it seem like I shouldn’t be thinking this. I don’t want to leave you behind and my first option would, of course be to move with you. I understand if you think differently, but I find it extremely saddening to hear that my Indian dad is more willing to consider moving to the UK than my British mum’

22.  In her e-mail to the Mother on 20 July 2020, RA wrote: -

‘Look I really don’t care what you guys think of me and everything and if you think my dad makes me talk to you, then you are wrong mama. But I have known I don’t want to go to freaking Phuket or Dubai or any other of the shitty countries dad has offered. A few months ago, me and my dad went shopping, and on the way back up the hill, my dad asked me what I want to do and where I want to live, and I said England and my dad didn’t listen because he was not sure about his visa.

I eventually got to him, so just recently after careful consideration, he told me he wold be willing to move there for our sake and future.

…

My decision was based across a few categories; school life, education, curriculum, nature, parks, housing, facilities, food, buildings and many more. I based my decision off of these categories, and therefore I see a future more so in England more than Hong Kong and the countries my dad suggested. For my future, I can see myself living in England long term and growing up in England.’

23.  About JY, Ms Tsui states “He said that he really wanted to go to England for study…”

24.  According to Ms Tsui, the children are of age and mature. Ms Tsui states: -

Present Condition of the Children

RA

14. RA was studying Year 11 in ESF King George V (KGV) School. She enjoyed studying. As reported by the school principal Mark Blackshaw of ESF KGV School, RA was a friendly, polite and eager student and was quite mature for her age. She was a confident speaker and took an interest in a range of school activities. Reportedly, RA had participated well in class and had a positive influence on the classroom and those around her. RA had shown significant growth since Year 7 and now had a well-established friendship group. RA achieved sound grades across most subjects and she had received some extra support and tuition for numeracy.

15. RA shared with the investigating officer that she was interested in singing, art and drama. She joined singing lessons in private tutors on Wednesday. She also joined drama and choir in school. RA also liked the journalist work. She had written articles in the Young Post of South China Morning Post during free time since 2020 and at least 3 to 4 pieces of articles being published. She had been tutoring group of students through an organization called Educate to Empower during the COVID-19 pandemic. For providing education for young children living in India's slums, she became a tutor and gave lessons to the Indian children through online tutoring. She also liked watching Netflix in her leisure time.

JY

16. JY completed Year 6 in ESF Clearwater Bay School in June 2021 and he studied Year 7 in ESF KGV School starting from August 2021. In the school report of June 2021 of ESF Clearwater Bay School, JY was commented to be a mature and motivated student. He had worked hard on all areas of his learning and he made progress. He was described to have strong communication skills and responded positivity to feedback. As reported by school principal Mark Blackshaw of ESF KGV School, JY was a positive and confident student who worked well both with others and independently. JY had only been at KGV School for a few months but seemed to be a capable student and was able to produce good quality of assessed work. JY had an established friendship group and he was sociable and active.

17. JY liked swimming, football and hiking. He told the investigation officer that he also liked playing Disc Jockey music with the Father. He also enjoyed arranging hiking with the parents and with his friends.

25.  After having carefully considered all evidence, I accept that the children are of age and mature. They have carefully considered the intended relocation and their desire to move to live and study in England is the result of serious and well-thought-out decisions and, accordingly the children’s wish should be accorded with considerable weight by the court.

Social Investigation Report

26.  The court has a duty to consider the Social Investigation Report, pursuant to s 3(1)(a)(i)(B) of the GMO.

27.  In her report, Ms Tsui recommends that the children should be allowed to be removed to live and study in England. She states: -

55. Both RA and JY told the investigating officer that they wanted to study and reside in England. They supported the Father's application for relocation. As revealed, being native English speakers studying in an international school, they had already got an idea of studying aboard for years. They expressed their strong wishes to study in England in the coming year 2022 and they said that were psychologically prepared well for adjusting to the changes and the new environment. In the change of social and political environment in Hong Kong, many of their friends had gone studying in England. The Children showed strong eagerness to reside in England and had a closer network with their friends. Moreover, RA opted that if she could go studying in England at an earlier time, she could have a better catch up to the university studies in England.

56. Both RA and JY were born and raised up in Hong Kong. Collected information revealed that RA, aged 15, was a self-driven and mature girl with clear life goal. She had discovered her interests and strengths. She considered the education, training and career opportunities in England were better for her future study/career development. JY, aged 11, was also a mature, assertive and motivated boy. They were able to get sibling support from each other. They appeared to opt for a better school life and future development in England. The Children emphasized to the investigating officer that they loved both parents and they wished to study in England without missing the love from the Mother. They understood that if they went to England, the Mother would not be physically with them but they still wanted to gain support from the Mother. They looked for close connection with the Mother continuously and promised to maintain close contacts with the Mother. They planned to use video calls to keep close contacts with the Mother and come back Hong Kong to stay with the Mother during school holidays. They even expressed their wishes that the Mother could go to England together. They valued the Mother's love, commitment and contribution in their lives.

57. With consideration of the strong urge of the Children for the move and study in England whereas their wishes should be respected and attended to as it would eventually benefit the Children when they were happy and settled, residing and studying in England is considered as a direction to move on. The parents showed their concerns from their point of view for the best interests for the Children while precious parent-child bonding is indispensable. For the plan for the Children's studying in England, the parents shared the same direction but the timing is the critical point for consideration. Moreover, there are uncertainties of the schooling, living arrangement in the proposed areas and the pandemic which make it difficult for the Children to have frequent actual contacts with the Mother during long holidays. Currently, the placements of the schools are available but more information have to be collected. An ISI Report to study of the living environment, schools and the support from the relative could he considered.

58. For the caring and access arrangement, the Father applied for the variation on the caring arrangement that the parents took care of the children from alternative weeks to alternate double weeks. The original plan had been carried out since 2020 and this change of arrangement is mainly for the convenience of the children's packing but without significant foreseeable positive influence on the beneficial or caring issue. Together with the uncertainties in the long term caring arrangement under the relocation application, the change on the caring and access arrangement is not considered as favorable arrangement at this stage.

59. The Mother concerned the children's development and concerned their emotional needs. She worried about the relocation arrangement, if granted, would cause impact on the children and it was well understood. However, during interviews, the children were observed to be calm with stable emotions. For the 30-sessions psychologist assessment, with the long time frame, would be another possible source of stress to the Children whilst they had expressed that they were good and studying in England was their wishes and they had prepared for the difficulties encountered. The Children showed strong confidence in adjusting to the new living environment while said they could get support from the Father, the Mother and the relatives and friends in England. They showed resistance in having any psychological assessment or appointed therapist at this stage. For the Mother's proposal of the appointment a psychologist, it is considered to be not a very workable plan for the Children. But for their on-going development needs, not limited to the relocation application, support from psychologist or counsellor could be considered but only on the voluntary basis with RA and JY's readiness.

60. Despite the long-lasting disputes between the parents, as reported, the caring arrangement went smooth in general as they put effort in communicating well with each other through emails for the best interests of the children. The parental coordinator or a mediator is considered to be the good assistance in working out the details and information for the parents' decision on the studying arrangement for the best interests of the children. Moreover, for some access arrangement, particular if the relocation would be granted, parental coordinator or a mediator could also assist in working out the details. The mother was also encouraged to share her views with the Children and listen more about the wants and needs of the Children. The parental coordinator or a mediator could also be considered in assisting in these areas for giving support to the parents and the Children for sharing their own views and making suitable decisions for the best interests of the Children and the Parents.

28.  The Mother picks on Ms Tsui’s report. In her words, in the present case the report was not thoroughly investigated or professionally assessed in a child-focused manner, Ms Tsui’s recommendations were given mainly on the children’s wishes and the Father’s plan, but every other issue or concern was ignored and the report focused solely on what the children said they wanted for without any justification. Contrary to the Mother’s criticism above, upon a perusal of Ms Tsui’s report, I take the view that Ms Tsui has closely investigated the relevant issues such as the motivation of the Father’s application, the children’s wishes, the question of whether the Father has a realistic plan, the children’s needs such as schooling and housing, the nature of the relationship of the children with each of the parents and with other family members, the children’s age, maturity, social and cultural background, the children’s need to maintain close relationship with the Mother and the question of how the children will spend time with the Mother if the children will live in England and the Mother remains in Hong Kong. She maintains a balanced view on the sometime controversial information and discuss issues in details. After having carefully considered all evidence, I take the view that Ms Tsui’s considered opinion should be accorded with considerable weight by the court.

Family Support

29.  According to the Father, the paternal grandparents and the children’s relationship is close. In the Mother’s words, the Father’s family that he speaks of are strangers to the children. In view of that the paternal grandparents visited the children in Hong Kong from time to time, I do not accept that they are strangers to the children. The Father’s aunt lives in Uxbridge, London and his cousin and his family live in Gerrards Cross. His cousin has two children, a boy and a girl who are close in age to the children. It is undisputed that the children have a close relationship with the Mother’s family who are living about 6 hours away by car from Gerrards Cross. I accept that both parties’ family may visit the children more often if they are living in England.

30.  The Mother is deeply concerned that the children and she will have difficulty in keeping in close contact as they do now. It is in the best interests of the children to have both parents living in the same country, but if the Mother remains in Hong Kong, the Father will encourage generous access. Over and above, it is clear from Ms Tsui’s report that the children are prepared to maintain close contact with the Mother if they move to live and study in England and she remains in Hong Kong. In the circumstances, I take the view that the Mother’s strong relationship with the children will go on and the children will continue to have the Mother’s support if the children move to live and study in England and she remains in Hong Kong.

Psychological evaluation on the children?

31.  The Mother remarks that the children saw child psychologist Dr Pon in August 2014 and then Dr Caleb Knight. I take notice that the above counselling service was provided by the order dated 5 August 2014 to assist the children with the transition period when the parties move to separate households and. Since then, the children have been well settled.

32.  By the consent application filed on 28 November 2014, the parties have agreed that either party be at liberty to bring an application regarding the children or any matter concerning them, including the issue of a child psychologist in the future. By the summons filed on 22 December 2021, the Mother applies for a psychological evaluation of the children allegedly due to the current emotional turbulence and the decisions they are forced to take without any professional support. The Mother avers that psychological evaluation on the children is required to consider the harm to the children of removing them from their home country and from their mother to let them grow up in a foreign country. She suggests that social workers by their training do not acquire the training or skills nor have the time to conduct proper in-depth investigation into the impact of removing the children in the present case. Despite that this is Ms Tsui’s first relocation application that she has dealt with, Ms Tsui is a very experienced social worker. Having been a social worker since 2000, she joined the Social Welfare Department in 2009 and was moved to the Family Service Unit in 2017 and has been working in the Family and Child Protective Services Unit since 2020. After having carefully considered all evidence, I take the view that Ms Tsui is in a good position to investigate and make recommendation on whether there is a need for a psychological evaluation on the children in the present case. Ms Tsui was asked to consider the question of a psychologist being appointed when the court called for her report. In her investigation, she concludes from the information gathered from the children’s schools and teachers and her interviews with the children that ‘they were observed to be calm with stable emotion’. When questioned by the Mother about the need for the children to be seen by a psychologist, Ms Tsui said that she ‘would not disagree’ but she made it clear that ‘for the aspect of relocation I have already assessed this’. It is pertinent to take notice that in the paragraph 59 of her report, Ms Tsui states that: -

‘for the Mother’s proposal of the appointment of a psychologist, it is considered not to be a very workable plan for the Children. But for the ongoing development needs, not limited to the relocation application, support from a psychologist or counsellor could be considered but only on the voluntary basis with RA and JY’s readiness.’

33.  The Mother questioned Ms Tsui whether she was aware that RA had previously had suicidal thoughts in January and February 2020. Ms Tsui is aware of this and she has looked into it. She said RA told her that it was due to the protests and Covid and the suspension of school. Ms Tsui said that RA told her that she had seen the school counsellor and had settled the issues.

34.  Taking into consideration all evidence, I accept that there is no need for a psychological evaluation for the children as now requested by the Mother.

The physical, emotional needs of the children, and their age, maturity, social and cultural background

35.  The children were born and have been living in Hong Kong since birth. It is noted that if the Father’s application for permission to relocate the children to England is granted, the children will have to go through big changes in their living environments. The court is required to consider how well they will cope with disruptions that may be caused by uprooting them and requiring them to begin all over again.

36.  Ms Tsui states that: -

‘RA shared with investigating officer of her visit to England in a family trip in 2017. She liked the living environment, culture, museums and many places there. RA revealed that she had also searched the information of the schools, the culture, the living and school environment of Gerrards Cross on the Internet. She understood the difference of living environment, transportation and culture between Hong Kong and England. She showed confidence in having good adjustment there. She understood the difference of living environment, transportation and culture between Hong Kong and England. She showed confidence in having good adjustment there.’

37.  In relation to JY,

“JY said that he had gone to England before and he liked the country much. He said that he really wanted to go to England for study. Many of his friends had moved to England and he would like to get closer with them although he understood that they would be in different schools and live a long distant from Gerrards Cross if he lived there. Even so, he emphasized that he could get closer with his friends and shared common topics. For living in England, he showed strong confidence in adjusting the living environment even there were many differences between England and Hong Kong. He did not have much worry about the possible difficulties as he said he could gain support from the Father and RA. He said that he did not like Hong Kong much even he was born here. He felt hard to take the taxi or purchase things as not all people in Hong Kong spoke English as he could only speak English but not Cantonese.”

38.  When questioned by the Mother about the effect that it would have on the children if they could not see her for a long time, Ms Tsui said she talked to the clhildren about this:

‘upon a successful application the Children understand that they would have less time with the mother. I have considered what they said and their maturity. They were able to tell me how they would cope with this change. They said they would miss the mother but they are confident that they would be able to keep contact with the mother to compensate for the lesser time spent with the mother.’

39.  When questioned by the Mother whether the children were aware of the problems that they might face when they move to the UK, Ms Tsui said that they were. Ms Tsui gave examples:

‘Both children said the change in environment may be a problem, but they know certainly that the UK and Hong Kong are very different in terms of daily life. They know the travel distances in the UK are much longer if they want to go from one place to another. They will also need to make new friends. They know that their time spent with the Mother would be different. RA mentioned the change in the academic curriculum but she is confident in meeting these challenges…

They can discuss challenges with the father. They can also talk to the mother for support and advice. They have some friends from Hong Kong who have gone to the UK, they can seek support from each other. They have surfed the internet to learn about the UK to prepare themselves psychologically. They also have extended family members in the UK who can give them support.’

40.  It is clear from Ms Tsui’s report that, not only the children are familiar with the social and cultural background to be offered in England but also they look forward to living there.

Schooling

41.  Both children are currently studying at ESF school. RA is in year 11 and JY is in year 7. The children have secured places in ACS Hillingdon International (‘ACS’) and JY has a place at Thorpe House. RA has a place in St Mary’s School that is conditional upon her GCSE results. ACS is a co-education school that both children can attend. Thorpe House is a boys’ school and St Mary’s School is a girls’ school. ACS follows the IB curriculum. All three schools are private schools and are considered ones of the best schools in the area. The children presently attend a good school in Hong Kong, but I accept that they will also be able to attend good schools in England. About RA’s studying plan, Ms Tsui in her report stated that RA preferred going to England “at an earlier stage” RA will be doing GCSE exams and will begin the two-year A level course from September 2022. RA wants to move in good time for her to start her two year A level course in the UK in September 2022.

Housing

42.  The Father proposes to live with the children in Gerrards Cross where his cousin lives. It is accepted that it is very good area that has the benefit of being in the countryside but is still only 20-minute train journey and 40 minutes away from London by car. The Father plans to purchase a property there but has not bought one as he is awaiting the outcome of this application. He has established connections with real estate agents in the area and has identified a number of homes of the type that he will purchase. The Father envisages that he will have a much bigger home in the UK than he can afford in Hong Kong. There is no doubt that the Father can offer satisfactory housing to the children in England.

Finance

43.  There are no issues as to the Father’s financial ability to support the children living and studying in England.

The likely effect on the child of any changes in the child’s circumstances

44.  Status quo is in favour of keeping the children in Hong Kong, but I do not regard it as a determinative factor in the present case. Although status quo is important, its importance would nevertheless need to be assessed on a case-by-case basis, depending on individual circumstance. The children are living in Hong Kong notwithstanding, they are British, they do not speak the local language, their first language is English, they go to International Schools, they live in the circles of the expatriate communities, their close friends are mostly expatriates living in Hong Kong, and according to Ms Tsui’s report, many of the children’s friends have left Hong Kong for England and the children are hoping to reconnect with them there. Surely the children’s home is in Hong Kong, but I regard that their root is not necessarily here. The children are familiar with the social and cultural environments to be offered by England. Accordingly, the disruption caused as a result of the change in the environment will be much less. I do not foresee that the children will have any significant adjustment problem if they move to live in England.

The parties’ capability to take care of the children and to meet their needs

45.  The capability of each parent to take care of the children and to meet their needs is an important factor. Since divorce, the children have been dividing their time largely equal between the parties. Despite that both the Mother and the Father have been actively involved in the day-to-day care of the children, seemingly a paradox, one the key issues in the present case is the Father’s capability to take care of the children and to meet their needs.

Parenting coordinator

46.  By the paragraphs Q and R of the consent order dated 5 August 2014, the parties have agreed to jointly engage a parenting coordinator and jointly pay the fees. Soon after the making of the court order dated 5 August 2014, the parties did jointly appoint a parenting coordinator. Then the Father found out that the Mother privately communicated with her. When he specifically drew the parenting coordinator’s attention to order dated 5 August 2014 that provides the jointly appointed parenting coordinator do communicate with the parties jointly and copy in both parties on any correspondence, she resigned. The Mother blames the Father that the parties have failed to jointly appoint a parenting coordinator ever since, but I take the view that I should not put all blame on the Father for the failure. There is distrust between the parties that apparently was caused by the Mother’s unilateral communication with the jointly appointed parenting coordinator. The parties co-parenting without a parenting coordinator afterwards notwithstanding, the children have settled well and happily switched households.

RA’s broken tooth

47.  The Mother criticizes the Father for not putting the children’s medical needs first. On 22 November 2015, the Mother picked up RA and was shocked to find out one of her upper left front teeth was chipped off when she played with friends earlier. The Mother criticizes the Father for not tending to RA’s broken tooth when RA was with him. I accept that the Father should have timely tended to RA’s broken tooth on 22 November 2015, but it appears to be an isolated incident.

RA’s physiotherapy

48.  The Mother took the Father to his e-mails sent to the Mother respectively in November 2016, February 2017 and the beginning of March 2017 where she said he was denying necessary physiotherapy for RA, despite that it was recommended by a Physiotherapy Report of the Physiotherapy Department of Tseung Kwan O Hospital. The Mother obtained the said report dated 3 February 2017 from the hospital and it was e-mailed to the Father on 3 March 2017. When the Father sent out the e-mails respectively dated November 2016, February 2017 and the beginning of March 2017, he was not aware of the report dated 3 February 2017. In his oral evidence, the Father said he would not refuse necessary physiotherapy for the children, nor would he ever do so going forward.

RA’s need for therapy

49.  The Mother criticizes the Father for refusing RA to have necessary therapy when she was having suicidal thoughts on two occasions in January and February 2020. The first episode was in January 2020. The Mother was worried about RA and she sent an e-mail to the school counsellor at 7:46 am on 8 January 2020. Less than 5 minutes later, at 7:55 am the Father responded. The school counsellor reported back the same day at 10:06 am that

‘I had a session with her today to understand more on her worries and stress. After my assessment, it is true that RA is very stressed and started to have some thoughts on giving up/escaping but luckily she does not have any suicidal plan yet so I would say she is not a risk at the moment. …

she just needs some methods to face her fear and stress. Therefore I told her to focus on the present instead of the future as she tends to over think A LOT so she freaks herself out … I will probably arrange another catch up session with her after the CNY holiday. For the time being, I would like to ask for your support to spend more time to talk to her … I am sure this is what has been doing already actually.’

50.  The Mother acknowledged to the Father after this that while RA was ‘feeling distressed and overwhelmed with things going on in her life. I don’t think she is suicidal either.’ She suggested that RA should have two sessions with a yoga teacher doing Mindfulness courses.

51.  In his response, the Father said RA should be supported by the school counsellor as advised but he did not agree to RA seeing an external therapist. The Father explains that this was in the context of the Mother having suggested the Mindfulness Yoga teacher and he did not prevent RA from having any necessary or recommended therapy. He supported RA at home as RA continued counselling with the school.

52.  The second episode was in February 2020. The school counsellor e-mailed the parties on 23 February 2020 after a session with RA stating that:

‘RA just told me (yesterday) that she feels stressed and overwhelmed during the school suspension time and she has suicidal thoughts again. … I will do more explanation tomorrow. In fact I checked up on her early February and gave her some advices on how to take care of herself in this period of time. But I understand it is still difficult for students to be stuck at home every day especially for RA.’

53.  The school counsellor suggested that it might be time to consider some external support and recommended family counselling. Subsequently, the Father wrote to the school counsellor that he did not want family therapy. The Father explains that he did not believe it would help to have both parties in therapy with RA given the state of the parties’ relationship. The Father suggests that RA and the Mother were also concerned by this, as the Mother showed in her e-mail to the school counsellor:

‘I understand that RA is concerned by the term “Family Therapy” as it suggests all three of us sit together. As (the Father) and I don’t communicate other than by e-mail of course RA knows this would be stressful.’

54.  The Father stresses that he was not denying RA ongoing therapy at all. In her response to the parties, the school counsellor said she would continue to work with RA as before regularly. The Father then responded and thanked her for supporting RA.

55.  RA continued with the school counsellor until about August 2020 and has not had any suicidal thoughts ever since. There is no evidence or signs that she is currently suffering from duress or pressure. The latest school reports do not indicate this. The school teachers have not recently expressed concerns about her emotional health. The decision to continue with the school counsellor was also RA’s choice. In her e-mail dated September 2020, RA wrote:

‘Let me make myself clear. I want a Counsellor to listen to me for what I have to say, but this can only be at school. I understand that if the school can’t support me, we can look into external counselling. But only after I get a response from school.’

56.  After having carefully considered all evidence, I accept that the Father did not ignore or brush off RA’s need for therapy.

Father’s text messages

57.  The Mother shows the court some text messages exchanged between the Father and the children where the Father used foul languages to the children and said it is a cause for worry. The Father admits that the languages were harsh and unkind. He accepts that he should not have lost his temper and should have acted in a better manner on the occasions.

Father’s mental health

58.  The Mother is extremely critical of the Father’s mental health. In April 2014, the Father took a parenting capacity evaluation with Dr Craigen and that was jointly reviewed by Dr Threlfall. According to the Mother, in the report dated 4 August 2014 it was stated that the Father was rated high on paranoia and had anxiety and obsessive-compulsive disorder (‘OCD’) and history of intrusive thoughts and further investigation was recommended. She seeks an order for a full clinical psychiatric evaluation of the Father. In contrast, the Father contests that Dr Craigen’s report gave him a clean bill of mental health and praised his parental awareness and skills. The parties went into great details about the findings and recommendations of the report dated 4 August 2014 to demonstrate their respective cases. Upon a perusal of the report dated 4 August 2014, I take the view that while the report dated 4 August 2014 did not really give the Father a clean bill of mental health, there was no conclusive clinical diagnosis that the Father was suffered from high paranoia, anxiety, OCD or intrusive thoughts. Additional assessments for further investigation were mentioned in the said report but were never done.

59.  When questioned by the Mother about the report dated 4 August 2014, Ms Tsui said she had already taken the report into account in her assessment and recommendation as to the best interests of the children. Ms Tsui read the Mother’s 6^th and 7^th Affirmation and was fully aware of the Mother’s serious allegations about the Father’s mental health and parenting ability. In her oral evidence, Ms Tsui confirmed that there was no cause for concern about the Father’s parenting that she saw. It is also Ms Tsui’s observation that the children have been able to grow and develop well under the care of the Father.

60.  After having taken into consideration all evidence, I do not see the need for a full clinical psychiatric evaluation of the Father. I accept that there is no substance to the Mother’s contention that the Father is incapable of taking care of the children if the Father and the children relocate to England and she remains in Hong Kong either. By all accounts, the Mother saw it fit to have equally shared care arrangements with the Father. Since divorce, the Father has cared for the children for around 8 years. In the Mother’s own words, the children are happy and thriving, socially, academically and personally. The children have home with the Father on 5/5/2/2 basis until September 2020 and afterwards on a week-on/ week-off basis. Ms Tsui’s report shows that the Father is a caring parent having close and intimate relationship with the children. All of the above show that the Father is capable of taking care of the children if they are living with him.

The relationship of the children with each of the parents and with such other persons

61.  The nature of the relationship of the children with each of the parents and with such other persons is a factor that the court will usually take into account.

62.  In her report, Ms Tsui states: -

Observation on the Interaction between the Children and the Mother

18. Two mother-child observations were conducted in the office of the investigation officer on 17.10.2021 and at the Mother's home on 6.11.2021 respectively. On 17.10.2021, when the Children and the Mother arrived at the office, they sat together on the sofa in the waiting area. When they were invited to the playroom, the Mother and the Children sat on the mat spontaneously. JY chose a board game and suggested playing together. RA and JY shared the rules of the game to the Mother. Mother listened and she then read the game rules printed on the box. During playing the game, they discussed in which direction should the card be opened so that the game was fair to them all. The mother made a proposal on the direction and both RA and JY agreed. They then started the game and played repeatedly. RA said a word in a very small voice when she lost the game, the Mother asked RA to speak properly. When JY and RA won the game, the Mother praised RA's keeping on trying and JY's quick response. After the games ended, the Mother counted the number of the games they won and gave recognitions to the children. The atmosphere was harmonious and joyful. The interaction between the Mother and two Children were spontaneous and peaceful.

19. Another observation was conducted during home visit to the Mother's home on 6.11.2021. When the investigation officer arrived, RA was having her breakfast. The Mother asked her to finish it. After finishing her breakfast, RA went to her room for doing her coursework and JY continued playing the board game - monopoly with the Mother in the living room. Later, RA came out and shared the design of her artwork with the Mother. They exchanged their ideas and discussed on the design of the artwork. Later, the Mother confirmed with JY for his going out for watching a film with his friends in the afternoon. She asked JY to bring his Octopus card and check whether he got enough money. She also suggested JY bringing a battery charger for his smart phone if necessary. JY then checked it quickly and he said he might not have enough money. The Mother discussed with him on whether giving him cash or he would like to withdraw money from bank ATR machine. He finally decided to withdraw money by himself. As observed, the interaction between the mother-children was spontaneous and harmonious. The Mother was caring and the Children were responsive.

Observation on the Interaction between the Children and the Father

20. Two father-child observations were conducted in the investigation officer's office on 2.10.2021 and at the Father's home on 1.11.2021 respectively. On 2.10.2021, the Children and the Father arrived at the office and talked naturally in the reception area. Having entered to the playroom, the Father invited JY and RA to choose board game. When they moved to the mat for playing the board games, the Father and RA put the shoes off. As realized that JY's shoes were still put on, the Father reminded JY to put them off and JY followed. During the game, RA could not read the card clearly from her direction when it was placed up-side down. They discussed how to make the game to be fairer. JY and RA suggested changing the directions of the card to be placed, the Father followed. After the game was over, the Father appreciated the “winner” and cheered up the “loser” for both children. In playing another board game, when the Father failed to move out a block from a piles of blocks, RA and JY helped the Father spontaneously. The atmosphere was observed to be harmonious and joyful. They talked and played spontaneously with each other in cheerful tone and interactive dialogue.

21. On 1.11.2021, observation was conducted during the visit to the Father's home. As RA needed to attend a rehearsal of a school drama, she appeared a little bit anxious. She asked the Father whether she could leave earlier. The Father told her that she could go back to school for rehearsal after the observation. RA accepted. After the investigating officer having visited their rooms, JY brought out a game called “Carrom Board” in the living room and asked the Father to play with him. At first, JY played with the Father while RA sat aside. The Father invited RA to join JY as a team but RA refused. After having watched for a short time, RA sat by the Father and played with the Father as a team. RA and Father, as a team, took turns to play the game spontaneously. After the game, JY, RA and the Father tidied up the living area and went back to their bedrooms. Later, JY and RA went back to the living room and RA asked when the observation would be ended. The Father confirmed RA that he would drive her to school so that she would not be too late for the activities. RA was released. When the visit was near to the end, the Father asked RA whether she had enough pocket money at hand and concerned her plan and time return home and RA shared her needs on money but she was uncertain the time for returning home. The Father showed understanding. He then quickly prepared to take RA back to school. He invited JY to go out to have a ride together. JY agreed. Observation revealed that the father-child relationship was responsive and caring.

63.  There is little dispute or indisputable that both parties are caring parents having close and intimate relationship with the children.

The Payne guidelines

Was there a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end?

64.  I have no doubt the Father loves and cares for the children. I take the view that he wants to take the children to England because he thinks it is in their best interests to live and continue their study in England. The Father recognises it is in the best interests of the children to maintain their close relationship with the Mother. The Father is ready to offer generous access to the Mother in the event that his relocation application is granted. There are many other places that he can live that may be more advantageous to him in terms of tax liability. I do not believe that the Father’s present position that he wants to relocate the children to England is out of his own selfish desire to obtain a UK passport or has been motivated by the desire to exclude the Mother from the children’s life.

65.  Along with I believe that the Mother loves and cares for the children and she wants the children to stay in Hong Kong as she thinks that it is better for them if the status quo is maintained, I am dismayed to find out that she refuses to cooperate in terms of securing school places in the UK for the children, even though she is well aware that this will be done without prejudice to the Mother’s case that the children should continue to live and be educated in Hog Kong. She has refused to give consent to schools in Hong Kong to facilitate the children taking assessments organised by the schools in the UK or to provide academic reference to the UK schools, furthermore, despite that by the court order made on 20 August 2021, the children are permitted to be registered at St Mary’s School, Thorpe House or ACS and to take assessments organised by the schools in the UK, the Mother wrote emails on 19 December 2021 to the schools in the UK misleadingly advising the schools that the Father had no permission from the court to enrol the children to any schools in the UK. After the Father sent emails on 21 December 2021 to the UK schools clarifying that the court order dated 20 August 2021 clearly stated that the children were permitted to be registered at the schools and to take assessments, it is regrettable that the Mother again sent emails on 3 January 2022 to the schools insists the schools freeze the applications regarding the children, relying on in support that she has joint custody of the children. I take the view that the Mother’s emails dated 19 December 2021 and 3 January 2022 respectively show blatant disregard of the court order dated 20 August 2021. I further take the view that the Mother’s unlawful interference with the Father’s applications for places in schools in the UK for the children is driven more by litigation tactics than a genuine concern for the children’s best interest in schooling, inasmuch as securing places in good schools in the UK pending the determination of the Father’s application for relocation in the next a few months obviously benefits the children.

Was the application founded on practical proposals both well researched and investigated?

Covid-19

66.  The Mother criticises that the Father’s application is premature as it is uncertain whether the parties and the children can travel frequently between the two jurisdictions. The Mother suggests that the Covid-19 pandemic should be given much weight as it clearly impacts the whole application. It is true that the Covid-19 pandemic has up-ended countless moving and travelling plans for the past years. Despite that the pandemic is likely to stay for a long time, it is undisputed or indisputable that vaccinations and new medicines have reduced much the severity of Covid-19 for most people. Most of Europe including the UK have opened up, and Hong Kong is letting up its travel restrictions and social distancing measures. I take the view that Covid-19 is not the determining factor in the present relocation application.

67.  In her Closing, the Mother mistakenly submits to the court that Ms Tsui is not in favour of removing the children from Hong Kong in the next a few months due to the Covid-19 pandemic and uncertainties of the schooling and living arrangements, relying on in support the paragraph 57 of Ms Tsui’s report. Ms Tsui’s report was prepared in December 2021. At the trial, having had the benefit of additional information, Ms Tsui has agreed that there are no longer uncertainties regarding the ability of the children to study at a good school, that the Father has taken his plans for housing as far as he can for the present time, and that the concern over access because of the pandemic is no longer as great as it was.

UK Parent Visa

68.  The Mother doubts whether the Father will obtain the UK Parent Visa. The Mother suggests that, to allow the Father to apply for a parent visa, the applicant Father needs to be out of the UK and the children must be living in the UK and as a consequence, the Father needs the children and the Mother to move to England to assist his application for the UK Parent Visa. Despite that the Father accepts that ‘if there is no visa then we will not be relocating’, he maintains that he will qualify for a visa so that he can live in the UK with the children. In respect of the Father’s plan for the UK Parent Visa, the Father has obtained UK solicitors’ advice that, while the children are minors and they are living with the Father, he is eligible for the UK Parent Visa. Regarding the condition that the children must be living in the UK, the UK solicitors advised they believe that ‘the definition of a British citizen living in the UK includes one returning to the UK with the applicant’. The Father’s evidence is that once the relocation order is made, he has been advised that he can apply for the visa from Hong Kong and the children can be in Hong Kong. When he does so, they do not have to be in the UK. Further, he does not need to vary the custody order such that he is granted sole custody. Having carefully considered all evidence, I take the view that the Father’s visa arrangements are workable.

69.  In her Closing, the Mother suggests the court should now call for expert evidence to determine the question of the Father’s visa plan. I take the view that it is not open to the Mother to call for this in Closing. The time for making such an application has long passed.

English proficiency test

70.  At trial, the Mother for the first time raised her doubt about the Father’s ability to get a place to sit the required English proficiency test in Hong Kong in time. By the letter dated 10 June 2022, the solicitors wrote to the court that immediately after the trial, the Father booked the test and has passed it.

71.  Never having lived, worked or studied in England and having not been to England in almost 13 years and never to the area he proposes to live notwithstanding, the Father has put forward detailed plans of accommodation, schooling, finances, care arrangements and generous proposals on keeping up the Mother’s contacts. Taking an overview of all of the above, I accept that the Father has made well thought out, realistic and practical proposals well researched and investigated.

What will be the effect on the Father if his application is refused?

72.  The Father takes issue with with the Mother’s contention that the Father will not suffer any harm if his application is dismissed. If his present application is granted, he will be eligible for the UK Parent Visa. After having lived in the UK under the UK Parent Visa for 5 years, as long as the child is not living an independent life, a parent will have permanent residency in the UK. If the children are unable to relocate to England in Summer 2022 but go to the UK universities after finishing Year 13 in Hong Kong, they will finish universities and start living independent lives after 3 years of moving to the UK. By the time, the Father will have to leave the UK and will not be able to live the same country with the children.

73.  If the Father’s present application is refused, no doubt the children will be upset and deeply disappointed. It is worthy of noting that, in such event, RA will not be able to begin the two-year A level course from September 2022 in England like she prefers.

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

74.  The Mother suggests that the Mother will be exclude from the children’s lives, due to the pandemic, due to her job requirements, due to different time zones that limit even the internet and social media contact if the Father’s application is approved. The Mother and the children clearly have a close relationship and therefore a relocation is an emotionally painful prospect. I accept that there will be negative impact on the Mother if relocation is granted. As a British passport holder the Mother has right of abode in the UK. Plainly, for both parents to move is the ideal, but if the Mother remains in Hong Kong, the Father will encourage generous access. I take the view that regardless of whether the Mother is living in Hong Kong or the UK, if the children are living with the Father, he will promote and facilitate the Mother’s visits to them. Despite that living and working in Hong Kong means that she will have to see the children by flying to England, or by the children flying to Hong Kong, and she will not be able to see the children like she wants, I do not foresee that the Mother will have difficulty in keeping up close contact with the children and with current social media unquestionably the Mother will be able to stay in contact with the children. The Father have put forward generous proposals that will allow the Mother to spend plenty of time with the children in Hong Kong and the UK. Due to the nature of her work, this Mother is able to spend a great deal of time with the children during school holidays. The Father is prepared to let the Mother have all overlapping HK and UK school holidays. The Father will pay the Mother’s flights and reasonable accommodation when she visits the children in England and will pay the children’s flights to Hong Kong. The children have their own phones and will be free to contact the Mother as they like and vice versa. While the Mother’s daily contact with the children may be reduced during school days, she can have frequent skype and telephone access, and generous ad hoc and holiday access. With the arrangements that I intend to make, I am confident that the Mother and the children’s strong relationship will continue to develop and will be able to sustain after the children moving to England.

75.  If the Father and the children relocate to England, the children will be able to build up a close relationship with the paternal family that includes uncle, aunt, cousins, grandparents and grand aunt. The children have a close relationship with the Mother’s family living in English and the Father is willing to facilitate the children’s access to them.

Overall, what are the arrangements in the best interests of the children?

76.  I remind myself of the provisions of s 3 of the GMO which provide that when a court determines any question with respect to the custody or upbringing of a minor, the court shall regard the best interests of the minor as the first and paramount consideration, and in having such regard shall give due consideration to the social investigation report and all relevant factors. Despite that the status quo favours the Mother, given that the children will maintain close contact with both parents, and they are familiar with the surroundings offered by the Father in England, I take the view that they will not have significant adjustment problem if they are to relocate to England. It appears that the importance of the status quo is of comparatively small significance in the present case. I take the view that the Father’s application is genuine and not motivated by any selfish desire on his part, further it is founded on well researched, realistic and practical proposals. The children have places in good schools that the Father has agreed to pay for in full. To live in the UK, the Father requires a visa that he has not obtained yet, neither has he set up a home at this time but I accept that this does not mean his application is premature as he can only do these things once the removal order is arranged. He has taken legal advice on obtaining a visa from reputable lawyers in the UK and has been told that he qualifies to obtain one. He will be housing himself and the children in accommodation of a standard that exceeds their current accommodation in Hong Kong in a good area, close to the schools and the Father’s family members. I accept that his plans have advanced as far as they can and just await an order that will allow them to be finalised. I have no doubt that the Father is capable of taking care of the children if they are living with him in England. The Father has provided proposals that will allow the Mother to maintain close contact with the children and has shown that his is accommodating to ensuring that this will happen. The Father has agreed to pay for the children to fly to Hong Kong to see her. The wishes of the children have been made very clear, they want to relocate. They are both of age that their wishes carry significant weight. I take notice Ms Tsui recommends that leave be granted for the children to live and study in England. All things considered, I am persuaded that it is in the children’s best interest that they are permitted to relocate to England.

77.  What it seems to me I should do is to put in place arrangements for the children spending time with the Mother after their move to England. The Father’s and the Mother’s proposals are at Annex A and Annex B respectively. In principle, I agree with the Mother that she should have enlarged holiday time and I also regard that there should be a scheme in place that is generous, flexible and will permit her ad hoc overnight stay with the children.

Parental coordinator

78.  In her report, Ms Tsui wrote:

60.Despite the long-lasting disputes between the parents, as reported, the caring arrangement went smooth in general as they put effort in communicating well with each other through emails for the best interests of the children. The parental coordinator or a mediator is considered to be the good assistance in working out the details and information for the parents' decision on the studying arrangement for the best interests of the children. Moreover, for some access arrangement, particular if the relocation would be granted, parental coordinator or a mediator could also assist in working out the details. The mother was also encouraged to share her views with the Children and listen more about the wants and needs of the Children. The parental coordinator or a mediator could also be considered in assisting in these areas for giving support lo the parents and the Children for sharing their own views and making suitable decisions for the best interests of the Children and the Parents.

79.  I take the view that a parental coordinator will benefit the parties and the children especially during the transition period.

Disposal

80.  Upon the Father’s undertaking to pay the children’s school fees in England, their health insurance premiums and living expenses at home

IT IS ORDERED that: -

(1)  There be leave to the Father’ to permanently remove the children from the jurisdiction of Hong Kong to live with him in England.

(2)  Upon relocation, the Father do have the care and control of the children with generous access to the Mother.

(3)  The Father be permitted to keep the children enrolled at the schools in England. Upon relocation, RA do attend either ACS or Thorpe House and JA do attend either ACS or St. Mary’s School.

(4)  The Father do take all reasonable steps to ensure that the Mother is copied into all communications and information from the children's new schools.

(5)  As a stopgap measure, the present access arrangement in Hong Kong continues until further order of the court or the Father and the children’s relocation, whichever is the earlier.

(6)  Upon the Father and the children’s relocation.

(i)  The Father do provide to the Mother details of his and the children's accommodation in England, including the address and contact numbers from time to time;

(ii)  There be remote access between the Mother and the children on a daily basis via telephone / WhatsApp / FaceTime Skype or other electronic means of communication, with the Father facilitating the children being able to speak to the Mother either before going to school in the morning, or at the end of the school day during the week, and at a mutually agreed and convenient time on the weekends (taking into account the time difference). The Mother may also contact the children during their school breaks;

(iii)  In respect of all overlapping holiday dates (meaning those dates when the children and the Mother have school holidays at the same time), the children do spend these with the Mother, either in England, Hong Kong, or another destination of the Mother's choosing;

(iv)  The Father do pay for two economy class return airfares from London to Hong Kong per calendar year for the children until each child reaches the age of 18, and whilst the Mother's primary residence remains in Hong Kong;

(v)  The Father do pay for quarantine hotels for the children if required in Hong Kong;

(vi)  The Father do pay for two economy class return airfares from Hong Kong to London per calendar year for the Mother until each child reaches the age of 18, and whilst the Mother's primary residence remains in Hong Kong;

(vii)  The Father do pay for the Mother’s reasonable accommodation when the Mother visits the children in England;

(viii)  With reasonable notice being provided to the Father, the Mother do have additional time with the children as and when she travels to England. Such additional access can take place in England during the school term from after school and overnight, and during weekends from after school on Friday until 8pm on Sunday, or such other arrangement as the parties shall agree on;

(ix)  Either parent can travel with the children out of England for the purpose of holidays and shall provide to the other parent details of the travel to include airline tickets, accommodation and contact numbers at least 7 days before the start of the holiday.

(7)  The parties do jointly engage a parental coordinator to assist the parties in amicably resolving disputes about the compliance of this order and to educate the parties about making decisions that are in the best interests of the children and to communicate the parties jointly and to copy in both parties on any correspondence. The parties do jointly pay the fees of the parental coordinator.

(8)  There be leave to the Father to show the sealed copy of this order to the British Government for the purpose of his application for the UK Parent Visa;

(9)  Upon relocation, a mirror order be entered into in England at the Father’s expenses.

(10)  There be no order as to the Father’s summons filed on 30 July 2021 and the Mother’s summons filed on 22 December 2021.

Costs

81.  This being a child matter, it is ordered nisi that there shall be no order as to costs of the summons filed on 22 June 2021, 30 July 2021, 22 December 2021 and 21 January 2022 respectively, including all reserved costs. The order nisi becomes absolute 14 days after the order is made unless a party has applied to the court for varying the order.

Annex A

RESPONDENT (FATHER’S) AMENDED OPEN PROPOSALS (IN RESPONSE TO THE MOTHER'S OPEN PROPOSALS DATED 29 APRIL 2022)

In the event relocation is granted and the mother stays in Hong Kong

1. The Respondent be granted sole care and control of the Children with generous access to the Petitioner.

2. After relocating to England, RA do attend either St. Mary's School in Gerrards Cross or ACS International, and JY do attend either Thorpe House School in Gerrards Cross or ACS International School.

3. There be indirect access between the Petitioner and the Children on a daily basis by way of telephone / WhatsApp / Skype or similar, with the Respondent facilitating the Children being able to speak to the Petitioner either before going to school in the morning, or at the end of the school day during the week, and at a mutually agreed and convenient time on the weekends (taking into account the time difference). The Petitioner may also contact the Children during their school breaks.

4. In respect of all overlapping holiday dates (meaning those dates when the Children and the Petitioner have school holidays at the same time), the Children do spend these with the Petitioner, either in England, Hong Kong, or another destination of the Petitioner's choosing.

5. The Respondent do pay for two economy class return airfares from London to Hong Kong per calendar year for the Children until each child reaches the age of 18, and whilst the Petitioner's primary residence remains in Hong Kong.

6. The Respondent do provide to the Petitioner details of his and the Children's accommodation in England, to include the address and contact numbers.

7. With reasonable notice being provided to the Respondent, the Petitioner do have additional time with the Children as and when she travels to England. Such additional access can take place in England during the school term from after school and overnight, and during weekends from after school on Friday until 8pm on Sunday, or such other arrangement as the parties shall agree on.

8. The Respondent do take all reasonable steps to ensure that the Petitioner is copied into all communications and information from the Children's new schools.

9. Either parent can travel with the Children out of England for the purpose of holidays and shall provide to the other parent details of the travel to include airline tickets, accommodation and contact numbers at least 7 days before the start of the holiday.

10. It is not agreed that the Respondent shall pay for 3 business class flights for the Petitioner every year to travel to England or to any other country. The Petitioner shall pay for her own flights.

11. It is not agreed that the Respondent shall pay for accommodation when the Petitioner visits the children either in England or goes on holiday with them elsewhere. The Petitioner shall pay for her and the Children's accommodation, flights and expenses whether she spends time with them in England or goes on holidays with them overseas.

12. It is not agreed that the Respondent shall pay for any quarantine hotels if required in Hong Kong.

In the event relocation is granted and the mother moves to England with the children

13. The Petitioner and Respondent shall continue to have joint custody and shared care and control of the Children in England.

14. During term-time, the Children shall spend time with the Petitioner and the Respondent on a 2 week alternating basis, with no change to the existing holiday arrangements.

15. It is not agreed that the Respondent shall pay the Petitioner's immediate expenses, her rental of a flat in England, nor a lump sum.

In the event relocation is refused

16. In the event the Respondent's relocation application to England is refused, the Respondent proposes, in accordance with his Summons of 30 July 2021, that during term-time, the Children shall spend time with the Petitioner and the Respondent on a 2 week alternating basis, with no change to the existing holiday arrangements.

Annex B

Subject to the respondent providing this Honourable Court with indisputable evidence that guarantees his visa, or the visa itself, the Mother's offer is:

• In the event immigration is granted and the mother is moving to England with the children:

1. If the Petitioner lives in England - time parenting will be as it is currently in Hong Kong, practicing joint custody care and control, alternating weeks, and equally sharing the holidays as was done until now.

2. The Respondent to pay the mother's immediate expenses.

3. The Respondent assist the Petitioner with renting a flat for at least the first year.

4. The Respondent to pay a lump sum as will be determined by the court (or agreed between the parties) for covering at least the first-year expenses for not more than 1.5 years or until she finds a paying job, the earlier.

• In the event immigration is granted and the mother stays in Hong Kong

1. The Petitioner will have remote access to the Children via telephone, Skype, FaceTime, WhatsApp or other electronic means of communication.

2. The Respondent undertakes to facilitate the communication between the Children and the Petitioner.

3. The Respondent undertakes to provide details of her future accommodation, if changed, including but not limited to address and all contact numbers.

4. The Respondent will use his best endeavors to facilitate the Petitioner's time with the children during her stay in England and undertakes not to unreasonably withheld or obstruct the same.

5. Summer holiday, Xmas/New Year and Easter holidays - The Children will spend time with the Petitioner, in Hong Kong or any other destination that will be communicated to the Respondent.

6. The Respondent will pay for at least 3 flights every year for the children to Hong Kong (or an agreed alternative destination) when ticket price is the equivalent of England to Hong Kong or Hong Kong to England.

7. The Respondent will book and pay for any quarantine hotels required in Hong Kong.

8. The Respondent will pay for 3 business class flights for the mother every year to spend time with the children in England.

9. The Respondent will pay for a reasonable hotel, equivalent to 4 stars or above, in England with 2 rooms/suite for 3 visits above, and the children will stay with the Petitioner with her during her stay in England.

10. The children will stay with the mother any time she come to England to spend time with them.

11. The mother can travel with the children out of England and undertakes to return the children to England at the end of each trip.

12. The Petitioner will always have priority to spend time with the children when she flies to England, and she undertakes to notify and coordinate with the Respondent at least a week in advance.

13. Each party is allowed travel with the children during their respective time with the children and the travelling parent should provide the other parent with details of such travel (including but not limited to confirmed itinerary and airline tickets, accommodation and contact numbers).

14. Providing to the other party with details of such travel (including but not limited to confirmed itinerary and airline tickets, accommodation + contact numbers).

15. The Parties will use their best endeavors to best coordinate the time between them and enough time in advance taking into consideration the school calendar and potential implications of Jet Lag.

16. The Respondent is not allowed to remove the children