CN v. LYP

CAMP 267/2023, [2023] HKCA 1173

On appeal from [2023] HKFC 73

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 267 OF 2023

(ON AN INTENDED APPEAL FROM FCMC NO 2915 OF 2020)

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J U D G M E N T

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Hon Kwan VP:

1.  On 1 August 2023, the respondent (“the Mother”) issued a summons in the Court of Appeal seeking leave to appeal against an order for the relocation of the children of the family to Singapore made by HH Judge E Liu on 24 April 2023 (“the Relocation Order” and “Judgment”)[1]. On 2 August 2023, the Court of Appeal directed that a ‘rolled-up’ hearing of her summons be held on 19 September 2023 so that in the event that leave to appeal be granted, the hearing that day would be treated as the hearing of the substantive appeal.

2.  Legal aid was granted to the Mother on 16 August 2023 and the same counsel who represented her in the hearing below, Mr Edward M H Chan, was assigned to her on 22 August 2023. The petitioner (“the Father”) was represented by Ms Vivien Leung throughout.

3.  Supplemental grounds of appeal settled by counsel were filed on the Mother’s behalf on 29 August 2023. Mr Chan informed this court that the supplemental grounds will replace the draft grounds of appeal in Chinese submitted by the Mother on 1 August.

4.  The Mother has filed two affirmations on 1 and 28 August 2023, in support of her application for leave to appeal and stay of execution of the Relocation Order pending the final determination of her leave application and intended appeal. The Father also filed two affirmations, on 9 August 2023 and 11 September 2023, in opposition to the Mother’s application. Ms Leung objected to parts of the Mother’s 2^nd affirmation on the basis that they contained further evidence other than matters which have occurred after the trial in October 2022 and no reasons were given why such evidence was not adduced at the hearing below. As Mr Chan has not sought to rely on such evidence, we will not consider those parts of the Mother’s evidence. Insofar as further evidence has been adduced by both parties, we will have regard only to evidence pertaining to matters which have occurred after the trial.

Background

5.  The relevant background matters are taken largely from the Judgment and undisputed facts or evidence accepted by the judge.

(1)  Family background and marital history

6.  The Father is a Singapore national, born and raised in Singapore. He is 37 years old. The Mother is a national of China and a native of the Hunan province. She is 33 years old. The parties met in Shenzhen in 2013 and started dating. They were married in Chenzhou, Hunan in March 2015 and registered their marriage in December 2015. A daughter (“A”) was born to them on 26 July 2015 in Shenzhen. A son (“B”) was born to them in Hong Kong on 8 January 2019. A is now aged 8 and B is 4. Both are Singapore citizens by descent. A is a citizen of China. B has a right of abode in Hong Kong but not A.

7.  In 2012, the Father was employed by a company in Singapore as an investment manager which required him to spend substantial time in Hong Kong and the Mainland. In 2017, he joined another company. Between August 2019 and May 2020, he pursued a full time course for a master’s degree in business administration at the Hong Kong University of Science and Technology. On completion of his degree, he worked at a private equity firm where he was offered a five-month internship until October 2020. He made many attempts to look for a job in Hong Kong in July to October 2020 but was unable to do so due to the pandemic. He returned to Singapore in November or December 2020 and studied for another master’s degree in business administration.

8.  The Mother is the youngest child of her parents with three elder sisters. She received education in China up to secondary school level 2. She is not conversant in English. From 2006 to 2013, she had worked as a waitress, a management staff in an electronics factory, and the section head of marketing in a pub.

9.  The Mother and A lived in Shenzhen in 2015. The Father stayed with them in Shenzhen when he was not required to work in Hong Kong. In late 2015, the Father’s employer decided to relocate him from Singapore to Hong Kong. From January to April 2016, the family lived in Singapore. In May 2016, they moved to Hong Kong and lived in a rented flat in Tsing Yi, New Territories (former matrimonial home; “FMH”) until the events in early 2020 mentioned below. The Mother and A stayed in Hong Kong as the Father’s dependents.

(2)  Events in 2020

10.  Since 2017, the Mother’s parents have been living in Changping Town Dongguan City in a flat owned by their 2^nd daughter and her husband. In January 2020, the Mother and the Father with the children visited the Mother’s parents in Dongguan. The Father returned to Hong Kong on 28 January 2020 as he had to attend class. It was agreed that the Mother and children would return a day or two later.

11.  The Mother and children did not return to the FMH. The Father had no suspicion at the time. On 2 February 2020, the Mother messaged the Father asking him to bring milk powder for B. The Father then found out she had returned to Hong Kong with the children without telling him and had stayed with her 2^nd and 3^rd sisters in their home in Yuen Long which was rented by the 2^nd sister (“Sisters’ YL home”). The Mother said in her message that she wanted to stay with the 2^nd sister because someone would prepare meals for them and she had no assistance on child care at the FMH. The Father was unhappy. He asked the Mother several times to return with the children but she refused.

12.  In February 2020, there was suspension of classes in Hong Kong due to Covid-19. The Father proposed to arrange for A to study in Singapore. The Mother did not agree.

13.  On 11 March 2020, the Mother returned to the FMH. The next day, when the Father was out, she took away the children’s identity and travel documents without the Father’s knowledge and went to the Sisters’ YL home with the children. The Father and the Mother had a serious confrontation and argument there later that day. The Mother refused to release the children’s documents or to return to the FMH. Her keeping of the documents led to the problem on the renewal of A’s Hong Kong visa which was due to expire in November 2020.

14.  The judge did not accept the Mother’s reason for taking the travel documents was because she had to arrange for B’s vaccination. It was more likely than not because of her worry about the possibility of the children being taken to Singapore.

15.  The Father had limited access to the children in the Sisters’ YL home from 28 January 2020 to 13 March 2020. Thereafter, he was not able to have access to them because of the difficulty to establish effective communication with the Mother. Voice messages from A were sent to him on the Mother’s phone asking for money on a few occasions. The Father did not respond as he did not wish to involve A in the parental conflict. He sent messages to the Mother on the renewal of A’s visa but there was no reply. He was not allowed to visit A at the kindergarten. The Mother claimed she had tried to assist the Father in having access to the children but provided no particulars of her assistance.

16.  The Father petitioned for divorce on 14 May 2020 because he felt abandoned by the Mother and he wanted to gain access to the children through the legal process.

17.  He moved out of the FMH when the tenancy expired in early May 2020. In September 2020, the Mother moved with her sisters to a new place in Yuen Long (“Sisters’ new YL home”) taking the children with her. She did not inform the Father of their whereabouts. The elder sisters settled the rental and provided financial support to her. With the help of the social worker of A’s kindergarten, Ms Leung, the Mother also obtained emergency funding for B of $8,000 from a charity fund.

18.  In August 2020, the Father received a letter from the Education Bureau stating that A’s registration certificate for kindergarten admission would lapse upon the expiry of her dependent visa in November 2020. In September 2020, Ms Leung contacted him about A’s visa renewal but he told her he could not assist because the Mother kept the children’s travel documents. According to Ms Leung, the Mother refused to pass the travel documents to the Father as she was worried he would arrange for the children to go to Singapore.

19.  The Father made three applications to the Immigration Department to renew A’s visa in October and November 2020 but to no avail as A’s travel documents were not released to him by the Mother.

20.  There was one last attempt to renew A’s visa on 6 November 2020 the day before it expired. The Father received a call from Ms Leung to attend the Immigration Department immediately to sign documents for this purpose but he was unable to go at short notice. A’s visa was not renewed. Her school placement in Hong Kong was terminated in November 2020 as a result.

21.  As mentioned, the Father returned to Singapore in November or December 2020 when he could not find a job in Hong Kong. On 16 November 2020 and 8 December 2020, the Father’s former solicitors wrote to the Mother’s former solicitors requesting for access to the children. There was no or no constructive reply.

22.  The Mother and A went to the Mainland and B was left in the care of the Mother’s sisters in Hong Kong.

(3)  Events in 2021

23.  The Father was living in Singapore in 2021 and there was no physical access to the children during this period. He found a full-time job with a bank in Singapore in May 2021 as a credit analyst with a net monthly income of $26,530 (in Hong Kong currency).

24.  On 18 February 2021, HH Judge Melloy ordered a social investigation report be submitted to the court on or before 30 April 2021. A report dated 20 April 2021 (“1^st SIR”) was prepared by the social work officer Ms Lau. When the Mother was contacted by Ms Lau in February 2021, she was in China with A waiting for the extension of their two-way permits to come to Hong Kong. When Ms Lau arranged a home visit to the Sisters’ new YL home in late March 2021, the Mother and A were living there with B in one of the rooms. The Mother told Ms Lau that she planned to go to Dongguan with the children to live with her parents and that she would search for a job and enlist the help of her parents for child care. She also informed Ms Lau that in February 2021 she had secured a placement for A in kindergarten year 3 in Dongguan. Ms Lau was unable to make recommendations on custody, care and control and access since the Father was in Singapore and she was unable to assess the interaction and relationship between the Father and the children.

25.  A decree nisi for divorce was granted on 23 April 2021. In May 2021, the Mother applied for maintenance pending suit.

26.  From August to October 2021, the Mother removed the children out of Hong Kong to Dongguan without informing the Father or the court.

27.  By two letters of his solicitors dated 4 February 2021 and 30 September 2021 to the Mother, the Father inquired about the whereabouts of the children. The Mother only responded through her solicitors on 11 October 2021 that B was in Hong Kong and A was studying primary 1 in China. The name of A’s school in Dongguan was not disclosed to the Father until the Mother made an affirmation on 14 March 2022.

28.  It was subsequently discovered that despite the Mother’s claim that a placement was secured for A in kindergarten year 3 in Dongguan in February 2021, A was left unschooled between November 2020 and August 2021. A had stayed in Hunan for some time.

29.  In September 2021, A began her primary education in a private school about 15 minutes’ drive from the housing estate of her grandparents. As the Mother and A do not have “hukou” (household registration) in Dongguan, A is unable to attend a publicly funded school.

30.  On 6 December 2021, the Mother filed her application for leave to remove A and B to China. In the meantime, it was agreed that the Father could have long distance access to the children separately by electronic means on specified evenings four times a week.

31.  At a children dispute resolution hearing before Judge Melloy on 9 December 2021, the parties were unable to reach agreement. Judge Melloy ordered the Father to pay maintenance pending suit to the Mother of $3,000 per month and interim maintenance for the children of $3,000 per month from January 2022 until further order. As the Father had indicated his intention of removing the children from Hong Kong permanently, he was directed to file a summons for relocation by a specified date and an updated social investigation report was to be submitted to the court before 14 February 2022.

(4)  Events in 2022

32.  The Father started to have video access to the children in around December 2021 but the process was not smooth.

33.  A was under the impression that the Father had abandoned the family and there was a step-mother in Singapore. She was displeased and became distant from the Father. The Father denied having any relationship with other female. This was accepted by the Mother at the trial.

34.  The Father had difficulty to have meaningful video access to B who was only three years old and whose attention was often diverted. He was unhappy when B called him “uncle” in a video session. When he attempted to correct B, B did not seem to understand and the Father did not persist. It was with the encouragement of the judge during the trial in October 2022 that a physical access was arranged after the court hours and B was taught to address the Father as his father.

35.  An updated social investigation report dated 28 January 2022 (“2^nd SIR”) was submitted by Ms Lau. Ms Lau was unable to make recommendation on the relocation issue as the Father was staying in Singapore and she could not observe both parties’ relationship and interactions with the children and assess the caring capacity of each.

36.  On 7 February 2022, the Father issued his summons for leave to remove the children from Hong Kong permanently for relocation to Singapore.

37.  On 28 February 2022, Deputy District Judge T Kwan (as she then was) made an order by consent there be interim joint custody of the children to the Mother and the Father. Judge Kwan also ordered that interim care and control of the children be granted to the Mother, with a restriction that the Mother could not remove B out of Hong Kong without leave of the court or written consent of the Father. International social investigation reports were called for in Singapore and Dongguan.

38.  Ms Chew prepared an international social investigation report dated 11 July 2022 (“Singapore ISIR”) on the suitability of a possible relocation to Singapore. She sat in an access session by video in July 2022 for the children with the Father and interviewed the Father, A and the paternal grandparents.

39.  Ms Ching prepared an international social investigation report dated 9 August 2022 (“Mainland ISIR”) on the suitability of a possible relocation to Dongguan. She interviewed the Mother, A, the maternal grandparents and A’s class teacher.

40.  A further updated social investigation report was prepared by Ms Lau dated 22 August 2022 (“3^rd SIR”). She observed interactions between the Father and the children in video access and interactions between the Mother and A in a video call.

41.  At the time of the trial in October 2022, the Father was working as a product manager in Singapore earning about $38,430 (in Hong Kong currency) a month and living alone in a self-owned unit with three bedrooms. The Mother was staying with B at the Sisters’ new YL home. B attended a kindergarten in September 2022. A was studying in Dongguan and living with her maternal grandparents in their residence with three bedrooms.

42.  The Father, the Mother and Ms Lau gave oral evidence at the trial which took four days. Ms Chew and Ms Ching gave evidence by video conferencing facilities. On the inquiry of the judge, the Father proposed a period of transition to address the children’s adjustment if they should be allowed to relocate to Singapore. His proposal included a plan for the Mother to stay with the children in Singapore for the initial three months to help them ease into the new environment, with a plan for the children to get to know Singapore generally and participate in English enrichment courses[2]. The Mother however testified that she would refuse to go to Singapore to assist the children in their transition[3].

(5)  Events after the trial and the Judgment

43.  In early January 2023, the Mother informed the Father of her intention to take B to China. The purpose of the trip was to attend her grandfather’s funeral. The Father refused to give consent as the trip was one week before his agreed access to the children in Hong Kong. The Mother took B to China without the Father’s written consent or leave of the court, claiming that “court orders should at times be used flexibly and with common sense”[4].

44.  The Mother did return to Hong Kong with A and B at the end of January 2023 and the Father had physical access to them when he came to Hong Kong and they stayed with him for a week. This was the first occasion since March 2020 when the Father had physical access to both A and B at the same time and he took care of all their daily needs.

45.  In late March 2023, the Father agreed to the Mother’s request to take B to Dongguan in early April 2023 for Easter holiday of two weeks on her undertaking to return him to Hong Kong.

46.  Judgment was handed down on 24 April 2023 granting the Father’s application for the children to be removed permanently out of Hong Kong to Singapore with the Father; care and control of the children were granted to the Father with defined access to the Mother on the premise of a transition period as proposed by the Father at the trial. The Mother was required to indicate to the Father in writing within 21 days whether she would agree to join the children in Singapore during the transition, and, if not, the Father was to submit a revised plan for transition for the court’s approval. A target date of not earlier than the September term in 2023 was set for the children’s commencement of school in Singapore. The judge stated that the parents should consider informing the children, especially A, together and if necessary, with the assistance of social welfare officer, the effect of the Relocation Order, including the access available to the Mother and the plan to ease the transition for A and B[5]. The judge also made a supervision order of 12 months and directed that an updated social investigation report and an updated international social investigation report should be lodged into court not later than 28 days before the expiry of the supervision order.

47.  On 5 May 2023, the Father’s solicitors wrote to the Mother’s solicitors asking her to indicate whether she would agree to join the children in Singapore during the transition. The Mother’s solicitors replied on the same day that she has stated her stance at the trial and she is unwilling to join the children in Singapore for the transition. On 15 May 2023, the Father submitted to the court his revised proposal for transition which did not require the Mother to travel to Singapore.

48.  Contrary to the suggestion in the Judgment that the parents should consider informing the children together of the Relocation Order, and, if necessary, with the assistance of social welfare officer, the Mother on her own informed A and B of “the possibility that they will have to go to Singapore” and both “immediately expressed their objections”. The Mother said in her affirmation she understands their stance and must do what she has to, namely, to file an appeal and apply for a stay of execution[6].

49.  On 12 May 2023, the Mother acting in person filed a summons in the Family Court for leave to appeal against the Relocation Order and the Judgment and for stay of execution in the interim. She did not file a notice to act in person until 16 June 2023. She applied for legal aid on 25 May 2023, on account of which there was a stay of proceedings for 42 days until 6 July 2023.

50.  On 5 June 2023, the Father lodged an application to obtain a mirror order in Singapore on his undertaking to the court as stated in the Relocation Order. Attempts of personal service on the Mother in June and July 2023 of the Father’s application for a mirror order were not successful.

51.  On 25 July 2023, the judge refused leave to the Mother to appeal against the Relocation Order and the Judgment and dismissed her application for stay of execution. The judge approved the Father’s revised proposal for transition and ordered him to make necessary arrangement for the children to commence their studies in Singapore on 11 September 2023 and the Mother should hand over the children and all their identity and travel documents to the Father not later than 4 August 2023[7].

52.  The Father attempted to have video access with A on the following day, which was A’s birthday. He was unable to reach her having been told by the maternal grandmother that she had gone out to play.

53.  On 27 and 28 July 2023, the Father reminded the Mother of her obligation to comply with the court order. The Mother’s response was that she intended to apply to the Court of Appeal for leave to appeal and stay of execution.

54.  The Father came to Hong Kong on 30 July 2023 and went to the Sisters’ new YL home in an attempt to pick up B. There was no response when he knocked on the door. He filed a missing child report and a missing person report with the police. When contacted by the police, the 2^nd and 3^rd sisters said they had no information on the whereabouts of the Mother and B. The Mother refused to communicate with the Father. When the Father attempted to contact her relatives in Hong Kong and Dongguan, they either blocked him on WeChat, or did not reply or were uncooperative or aggressive when they replied. The Father lost contact with A entirely from 26 July 2023 to 8 August 2023. He lost all contact with B from 28 July 2023 to 6 August 2023.

55.  On 1 August 2023, the Mother issued the present summons in the Court of Appeal for leave to appeal and stay of execution pending determination of her intended appeal.

56.  On 5 August 2023, the Father learned from the police that the Mother had responded to the police with a voice recording of B. She did not however disclose to the police their whereabouts. On 7 August 2023, the Mother resumed B’s video access with the Father. On 8 August 2023, the police found the Mother and B and took them to the Yuen Long police station and notified the Father (who had returned to Singapore) of this. The Mother and B spent 12 hours in the police station before they were released.

57.  The Father came to Hong Kong upon receiving news from the police. After his failed attempt to pick up B on 8 August 2023, through a social worker he arranged an interview with the Mother and B at the social welfare office in Tin Shui Wai on 10 August 2023. He had access to B on 11 August for one day and flew back to Singapore after midnight.

58.  On 9 August 2023, the Mother resumed A’s video access with the Father. He had video access with A again on 13 August. On both occasions, when the Father asked A where she was, she told him falsely that she was in Dongguan when she was in fact in Hunan. It was at the social welfare office interview on 10 August when the Father asked to visit A in Dongguan that the Mother revealed she had relocated A to Hunan in late July or early August and that she had planned for A to continue her schooling there. The Mother then provided to the Father the new address and contact number of A in Hunan. On 13 August, the Mother informed the Father on WeChat that A would go to school in Hunan in the coming school year and would be looked after by the maternal grandmother in Hunan. The Father objected to the arrangement. Six days later, on 19 August, the Mother informed the Father by WeChat of a change of plans and that A would continue to study in her old school in Dongguan instead. Normal communications with A were restored after the maternal grandmother unblocked the Father on WeChat on 26 August 2023. The Mother also notified the Father that day that A has returned to Dongguan.

59.  The Father’s solicitors wrote to the Mother’s solicitors on 22 August requesting among other things an undertaking from her to ensure that A returns to Hong Kong for the hearing on 19 September so that appropriate arrangements can be made based on the outcome of her application. The Mother’s solicitors replied on 25 August that she will comply with the order to be made by the Court of Appeal.

60.  However, the Mother has not complied with the orders made by the judge that she seeks to appeal from. She is not relieved from the obligation to comply with those orders unless and until a stay of execution is granted by the court. She cannot invoke the legal process by applying for leave to appeal and at the same time choose not to comply with the orders of the court. To protect the integrity of the legal process, at the hearing on 19 September 2023, we made an order for stay of execution of the Relocation Order and the order of 25 July 2023 pending our determination of the Mother’s summons for leave to appeal, and, if leave to appeal be granted, the substantive appeal, on the following conditions:

(1)  the Mother is to return A to Hong Kong within 16 days and A is to remain in her care in Hong Kong until the further order of the court;

(2)  B is not to be removed from Hong Kong until the further order of the court; and

(3)  the non-removal orders of A and B are to be registered at the stop list of the immigration controls of Hong Kong.

61.  The Mother’s solicitors informed the court subsequently that A has been returned to Hong Kong on 9 October 2023.

The proposed grounds of appeal

62.  In the intended appeal, the Mother seeks an order that the Relocation Order and the Judgment be set aside and the care and control of the children be granted to her and that they be permanently relocated to China with her.

63.  Mr Chan advanced these grounds of appeal for the Mother:

(1)  The judge has neglected and/or underestimated the difficulties, trauma and psychological harm that the proposed removal to Singapore (in order to be with a parent who thus far has never been a carer for at least one of the children) would inflict upon the children and has failed to recognise that the status quo is best in line with the interests of the children.

(2)  The judge misunderstood the amount of costs involved in schooling the children in Dongguan.

(3)  The judge made an incorrect assumption that between the parties the Father is more proactive in maintaining or promoting a co-parenting relationship.

64.  It is appropriate to consider ground (2) first, as this appears to be relatively straightforward.

The costs for schooling the children in Dongguan

65.  In weighing the factors to be considered for the relocation of the children, the judge singled out these four pertinent issues[8]: (1) financial sustainability of the Mother’s plan, “especially bearing in mind the Children’s educational expenses in Dongguan”; (2) any hindrance on the children’s development of a meaningful relationship with both parents and co-parenting; (3) emotional needs of the children under the Father’s plan; and (4) A’s view.

66.  In respect of the financial sustainability of the Mother’s plan in (1), the judge noted that the Mother has no income or savings, and has to earn income by working to provide the children with basic protection. The Mother planned to live with the children in the 2^nd sister’s home in Dongguan for free. There is however no evidence on the 2^nd sister’s commitment in this respect. Further, since the children do not have “hukou” in Dongguan, they do not enjoy the social benefits there.

67.  The judge then set out her understanding of the education expenses of the children in §91 of the Judgment:

“According to Mother, the monthly school fees and other regular educational expenses for A are HK$15,640. When B starts to attend kindergarten, his monthly school fees and regular educational expenses are HK$11,590. These make a total of HK$27,230, which is about 71% of Father’s current income of HK$38,430. Even if Mother works in the factory and earns the basic income of HK$5,790, the total educational expenses are about 61% of their total income of HK$44,220. There are also other general living expenses to meet. B’s school fees will increase if he starts the primary school. On the present income level of the parents, I have serious doubt on the financial sustainability of Mother’s plan.”

68.  Based on the above understanding, the judge went on to say that the Mother has relied on her sisters to cover the school fees and regular expenses of A as well as B when he started kindergarten and that no evidence was adduced on the financial condition of the sisters on their ability and commitment to make provision for the children’s needs in the long term. The judge contrasted this with the Father’s plan and noted that in Singapore the children are entitled to education at a highly subsidized rate, as well as healthcare and other public services. And Ms Chew concluded that the Father has adequate resources in his current financial circumstances to support the children under his plan.

69.  Mr Chan pointed out that the judge has made an error on the monthly school fees and other monthly education-related expenses of the children. She has mistaken the amounts incurred for a semester for the expenses per month. She added the two figures of $10,740[9] and $4,900 in §32 of the Mainland ISIR and came to the conclusion that the total school fees and other regular educational expenses of A per month amounted to $15,640, when it is clear that the amounts referred to by Ms Ching in her report were for one semester and not per month. Similarly, the total expenses for B of $11,590 were derived from the two figures of $8,100 and $3,490 in §33 of the Mainland ISIR. Again, Ms Ching clearly stated that the expenses as mentioned were for one semester. The judge is in error in calculating the total monthly expenses for the children at $27,230.

70.  In the Mother’s affirmation in support of her leave application to this court, she deposed that there are two semesters in China per year, the amount she paid for A’s school fees in September 2022 was about $2,000 per month, the amount for B would likewise be $2,000 per month, and the schooling of the children in Dongguan would cost about $4,000 per month for both inclusive of meals and transportation[10]. If one takes instead the figures per semester as mentioned in the Mainland ISIR, on the premise that each semester is about five months, the school fees and education-related expenses for both children per month would be about $5,400. In either case, the amount required for the schooling of the children in Dongguan would be less than 20% of the figure calculated by the judge.

71.  The Mother reiterated it is her intention to find a job in Dongguan, whether full-time or part-time. She has the support of her parents to look after the children. She currently receives $6,000 per month from the Father as maintenance. For almost two years from March 2020 to December 2021, she received no maintenance from the Father and was able to manage with her sisters’ help. She said she would only ask for financial assistance from her sisters as a last resort.

72.  It is accepted by the Father that the judge had misunderstood the evidence on the amount of school fees in Dongguan. However, Ms Leung submitted that the error is not sufficiently material to undermine the judge’s decision on relocation as the financial sustainability of the Mother’s plan remains “wholly uncertain”. Unlike the Father, who has made a clear and methodical presentation, the Mother did not put forward any financial budget. She has not provided details on the general expenses to support her claim, such as medical and dental expenses, clothing and shoes, entertainment and holiday expenses. There is no information on the cost of purchasing medical insurance for the children, who do not have “hukou” in Dongguan and do not enjoy the social benefits there. There is still no evidence as to the sisters’ commitment to provide for the children on an ongoing basis and their financial capacity. There is no evidence of any job offer to the Mother, nor has she made any progress in looking for a job since August 2022 when she spoke to Ms Ching about her plans. The Father contended that even with the Mother’s clarification about the monthly expenses for the schooling of the children in Dongguan, there still exists “lingering ambiguities” surrounding the financial sustainability of her proposed relocation to Dongguan.

73.  The error on the education expenses in Dongguan clearly played a material part in the judge’s view that there is “serious doubt” on the financial sustainability of the Mother’s plan. Nor could it be said that this error is not sufficiently material to undermine the judge’s decision on relocation as contended by the Father. Financial sustainability of the Mother’s plan is one of the four pertinent issues considered in detail by the judge in reaching her decision, and in considering financial sustainability the judge has placed particular emphasis on the education expenses in Dongguan (“especially bearing in mind the Children’s educational expenses in Dongguan”). Notwithstanding there is no detailed breakdown on other general expenses and no financial budget, it requires no stretch of imagination to think that the Mother’s plan of living and schooling the children in Dongguan is financially feasible, with income from the job that she would endeavour to obtain, supplemented by maintenance from the Father.

74.  As for the Mother’s failure to secure a job so far, one ought to have regard to the fact that for the past few years she needs to renew her two-way permit to Hong Kong every now and then to come and look after B and this would not be conducive in seeking employment in Dongguan. If she is permitted to relocate the children to Dongguan, she should be in a much better position to look for work.

75.  On the basis of this ground alone, leave to appeal from the Relocation Order and Judgment should be granted. As the judge has erred in the assessment of the financial sustainability of the Mother’s plan, and hence erred in the weighing of factors in exercising her discretion in the relocation of the children, this calls for intervention by the Court of Appeal[11]. As there is sufficient material for this court to exercise the discretion afresh, we would do so on the available evidence. Ms Leung acknowledged this is the better course instead of remitting the matter to the judge for a retrial, given the nature of the application, the nature of the error, the resultant uncertainty for the children, the delay which is likely to prejudice their welfare, and the family’s limited means.

76.  Of the two remaining grounds of appeal, ground (1) is more important and will be considered first.

Difficulties, trauma and psychological harm that may be inflicted in the event of relocation to Singapore

77.  Mr Chan emphasised the importance of the Mother as the primary carer of the children, and she has been the sole carer as far as B is concerned. In most cases concerning relocation, the application is made by the primary carer leaving the jurisdiction for reasons such as remarriage or returning to the homeland. Guidance provided by the authorities indicates a reluctance to interfere with the reasonable choice of the primary carer as to how and where the carer and child should live, because the welfare of the primary carer would impact on the welfare of the child. This consideration would need to be balanced against the desire to maintain the status quo and avoid disruption to the child including education, family and friendship ties and the right to be with both parents.

78.  Mr Chan made the point that the present case is unusual in that there does not appear to be such tension or opposing considerations. This is recognised by the judge, who stated that relocation of the children out of Hong Kong is inevitable. The question is whether they should relocate to Dongguan with the Mother or to Singapore with the Father[12].

79.  Ms Leung referred to well-known authorities which established that in relocation cases, there is no presumption in favour of the primary carer when all relevant factors are being considered, in that the only principle to be applied is that the welfare of the child is paramount[13]. That said, the reasonable relocation plan of the primary carer and the impact on the primary carer of a refusal of leave are nonetheless weighty factors to be considered in the holistic appraisal whether the relocation is in the best interest of the child. Mr Chan also urged caution that the value of a primary carer to a child must not be elevated to a determining factor or a presumption in law.

80.  With the above guidance in the authorities, I turn to consider the following matters:

(1) the relationship and interaction of the parents with the children as found by the judge and described in some detail in the various social investigation reports;

(2) the views of A on relocation; and

(3) the views of the social work officers.

(1)  The relationship and interaction of the parents with the children

81.  The Mother has undoubtedly a good relationship with the children, as can be seen from the observations of the social work officers in their reports:

“13. [A] is now 7 years old and impressed to be expressive and talkative. …

14. [B] is now 3 years old and impressed to be cheerful with normal built. He was taken care of by his mother and was attached to her. …

22. … [A] told [B] repeatedly that she missed him so much while [B] held smiley face to [A]. Their positive interaction and good sibling relationship were observed.” (3^rd SIR)

“6.1 [A] was observed by worker during access to be an energetic and lively child who is articulate and direct in her sharing. For example, [A] was able to verbalize and was prompt in answering the get-to-know/introduction questions that worker posed, such as her well-being in school, friends, the time in China, age, her hobbies etc. She expresses her likes and dislikes directly and openly.” (Singapore ISIR)

“20. [A] was eager to share her school life with the mother, such as, her money was lost at school. The mother showed concern to her and taught her to seek support from the teacher. Besides, the mother also reminded [A] to complete homework before playtime. The interaction between the mother and [A] was smooth. The mother said that she had maintained contacts with [A] through video call of WeChat nearly daily.

21. The mother and [B] played Lego in the playroom and laughed spontaneously. The mother-child interaction was observed to be relaxing. During the process, the mother accompanied [B] to play different toys, such as toy cars, and that [B] responded to the mother’s instruction and concern immediately, including tidying up the toys and wearing face mask properly. He was observed to be attached to the mother.” (3^rd SIR)

82.  In the Mainland ISIR §§39 to 41, the worker observed that A has developed a close relationship with the maternal grandmother who has been looking after her since she began living in Dongguan in August 2021. The pair held hands on their way home from school, talking and laughing, with the grandmother giving positive response and encouragement to A. The grandmother was moved to tears when A said she would study hard so she could earn money to provide for the grandmother in old age. When the Mother had video call with A, she took the initiative to inquire how A did at school and praised and encouraged A on achieving good results. In choosing clothing for A, the Mother would listen to her idea, respect her choice and let A decide. For enrolling in tuition class during the summer vacation, the Mother would ask for A’s opinion and the two would decide. A was excited and eager to talk to the Mother and the Mother would ask her to speak slowly. A was reluctant to end the call and the Mother continued to listen to her until A hang up.

83.  The Father had virtually no access to the children from March 2020 to December 2021. Although video access was commenced in December 2021, he had difficulty in maintaining meaningful contact despite the efforts he made to reconnect with the children. A was resentful towards the Father in the beginning (from the voice messages sent by A to the Father in 2020 and 2021, it would appear that she had been drawn into the parental conflict) and B was too young to remember him. He had physical access to the children only in January 2023. He said that his desire to see his children and the cumulative effect of the events that had transpired have taken an emotional toll on him and left him deeply traumatised[14].

84.  These observations were made by the social work officers in their reports regarding the Father’s relationship with the children:

“5.2 Father reported that the interactions during access with [A] can be quite dependent on her mood; she can be more temperamental at times. On days that she is not in a good mood, she would not want to speak much. On days that she is in a good mood, she would speak with Father. Father would also attempt to speak with [A] in Cantonese and English to help her to regain familiarity to the language.

5.3 … Generally, Father feels that it is harder to connect with and engage [B] over video call due to his developmental age that he may not be able to understand a lot of things; there were instances that [B] cried as he did not understand why he had to sit down to have a video call with Father. However, there have been improvements noted by Father when there are moments of connection, for example over mirroring of expressions, having similar remote control, biscuits and donuts.

6.2 [In a video access session on 10 July 2022] [A] did not wish to talk/engage with Father during the access; she verbalized that she preferred to be watching television. She also said that she had nothing to talk about, did not feel like talking today, and had finished talking. Father was visibly upset by A’s initial responses. However, Father waited patiently for [A] to be engaged again and continued to speak with [A], slowly pacing his questions to her. [A] continued to be relatively unresponsive to Father. Father spoke with [A] in Cantonese during the session.

The phone was with [A], and in the middle of the access she placed it on a platform, making the camera face the ceiling. After Father commented that he could not see her, she took the phone up again and presented her side view, with little response towards what Father was saying to her. Towards the end of the access, she left the phone on the platform, the screen showed the ceiling and it seemed that [A] walked off to another location.

6.3 [B] was observed to be an active child, as he would move about places from the sofa to the dining table during video access. He would also move about/be fidgety in his seat and adjust his position. Mother was observed to help to shift the phone for [B] to be on screen and called [B] to come back when he went off to the dining table. He used short phrases for about 3-4 words to answer and express what is familiar to him and is generally less conversant.

7.1 Father shared that he has a closer relationship with [A] as he was very involved in her life when she was younger, back in Hong Kong. However, Father also shared that [A] seems to have some resentment towards him stemming from her understanding of Father’s period of absence from her life and the current situation.

7.2 When the worker asked [A] about Father (in Father’s absence), she recalled Father bringing her to the playground and to eat nice food when she was younger and shared that she was closer to Father in the past, compared to now. When probed more about her understanding regarding Father and Mother’s situation, [A] shared that she is unsure.

7.3 She shared that she does not like Father now and feels angry at Father as he did not accede to her requests for red packets and presents and feels that Father is petty. She would like Father to accede to her request. She compared this situation with how she receives presents, gets red packets, and enjoys the food from Mother and maternal relatives/extended family.

7.4 [A] recalled that she used to call Father over the phone many times in the past and was not able to reach him, and she was upset. However, she couldn’t recall when this happened and where Father was at that point of time. [A] does not understand Father when he chooses to speak in English during access and that partly contributed to why she does not want to talk to him. In the access that was observed, Father spoke in Cantonese, which [A] shared that she could understand what Father was saying but does not know how to reply in Cantonese.

7.5 Father shared that he may not have a strong rapport and relationship with [B] as he was unable to be physically present with [B] during his growing up years. However, there were moments of positive interaction and connection observed between Father and [B] during access.

12.1. The interaction observed between [A] and Father seem to portray that they currently share a slightly distant relationship. However, [A] remembers sharing a closer relationship and there might be a good chance of mending the relationship with Father. There were more positive interactions and engagements observed between [B] and Father during video access. Father noted and shared that there are improvements in the interactions between the children and himself overtime. Father’s continual efforts to keep at connection with the children despite the challenges of engaging them is noteworthy.” (Singapore ISIR)

“17. During the observation session, [A] held smiley face and shared her daily activities with the father while the father also concerned [A] who was encouraged to learn more knowledge, including English, so that she could make friend with foreigners etc. The interaction between the father and [A] was natural. Approaching the end of the video call, [A] laid her head on the table and alleged that she was tired thus not willing to talk. In general, the father said that he maintained contacts with [A] regularly through video call of WeChat.

18. Through video call of WeChat, the father talked to [B] patiently though [B] had not sat still. [B] hid himself at the back of chair and then smiled to the father. The father developed different topics to maintain dialogue with [B] and concerned him. [B] responded to the father with stable mood. At the end of the observation session, [B] said bye bye ‘uncle’ (叔叔) to the father.” (3^rd SIR)

85.  In §§45 and 46 of the Mainland ISIR, Ms Ching reported that A described the happiest event she had with the Father was when he celebrated her birthday and bought her a present. She was disappointed that the Father had not acceded to her request in the past for taking her and younger brother out, and she thought the Father did not care for them. She said that she was happy this year to receive the Father’s birthday present even though it was not something that she wanted. She had not told the Father her preference, as she thought even if she had told him, he would not know how to get it. In §70, A said that the Father did not often share his life and his work with her and she did not ask him. She said she did the talking mainly when he had video access with her. She thought that the Father was petty as he did not give her red packet or present during new year and children’s day, so she was not too inclined to have video call with him and did not have much to say to him. Ms Ching expressed her view in §81 that the children lacked understanding of the Father and suggested the Father to take the initiative to share his life with them, to visit them in Dongguan or bring them to visit him in Singapore.

(2)  The views of A on relocation

86.  B is too young to express his views on relocation.

87.  A had expressed her views on relocation to the social work officers:

“8.1 When worker checked in with [A] on her views on relocation, she expressed that she does not wish to relocate as she is not sure if her academic results would be affected with the language that she would have to learn and adapt to in Singapore. She mentioned that she is doing well academically in her school right now and worries that if she is unable to get 100 marks etc. She based this on her experience when she came to Singapore that she had difficulties in understanding what the people here are saying (language barrier).

8.2 [A] also shared her concerns that if she relocates to Singapore, she is unsure if she would still be able to contact Mother. She shared that she would not feel happy to relocate to Singapore to live with Father.” (Singapore ISIR)

“27. [A] said that she liked to continuously live in Mainland China where she had lots of friends. She said that she had video calls with the father and the mother regularly.” (3^rd SIR)

88.  In §§50 to 52 of the Mainland ISIR, A was described by her class teacher that she has a gentle and introverted personality, is sensible, sensitive and polite, with good self-care abilities. Her grades were not ideal when she entered primary one but after individual guidance from the teacher and online guidance from her parents, she made good progress to the surprise of her teacher. She got along well with classmates and was popular among them. When there were minor conflicts among classmates, she behaved generously and did not hold grudges; she was able to solve problems on her own. In §72, A stated that she likes to live in Dongguan because she likes her school, her teacher and classmates are good to her, she has friends whom she cherishes, she can play freely and can live with her maternal grandparents. She expressed the wish that the Mother and B could join her to live in Dongguan.

(3)  The views of the social work officers

89.  Ms Chew noted the concerns of the Father and the paternal grandparents about the children’s education arrangements and their wishes that the children can be relocated and educated in Singapore, where the children can receive better education at much lower cost. Ms Chew opined that the Father has displayed commitments in making plans for the children and put in a substantial amount of consideration to meet their needs; he has adequate resources in his current financial circumstances to support the children and has displayed strong ability to plan ahead and to act upon the plans. Ms Chew made these comments at §12.2 of the Singapore ISIR:

“However, while Father’s and Parental Grandparent’s focus is largely on the quality of education that the children receive, it would also be helpful to explore the emotional needs of the children with and beyond the relocation period. For the emotional needs of the children, Father intends to take time to foster a closer relationship, give time for the children to adapt and be patient with them. Father will need to play a very active role and help the children during the transition.”

90.  In §12.3, Ms Chew stressed the benefit the children would reap from a continual relationship with both parents and the need for both parents to adopt a more collaborative stance for co-parenting and strengthening the communication for joint decision making regarding the arrangements for the children.

91.  In the Mainland ISIR §§79 to 81, Ms Ching took the view that A was suitably cared for by the maternal grandparents and that the living environment was safe and appropriate. A has adjusted to studying in her school, and has built up good relationship with her teachers and classmates. As A has maintained close contact with the parents through electronic means, the family support network is sufficient. If the children are to relocate to Dongguan, the Mother should increase her income by working, to provide basic protection for the Children. The Mother should also balance the demands of her work and family, and spend time with the children. The Father was encouraged to be more proactive to let the children know more about his life through sharing and visits in Dongguan and Singapore.

92.  Ms Lau observed in §13 of the 3^rd SIR that A was under proper care by her maternal grandparents and her schooling and daily life with regular routine were stable and satisfactory. In §29, Ms Lau repeated that the children are under proper care of their mother and maternal grandparents respectively and their daily life were stable and satisfactory with regular routine. She opined that “maintaining the status quo is helpful and important to the healthy growth and development of the children”. As for the Father’s child care plan with his parents’ support, Ms Lau considered it “feasible but [A] and [B] have to adjust to the new living environment”. In §30, she urged the parents to shoulder their parental responsibilities continuously and develop co-parenting relationship, which would be beneficial to the children’s development.

93.  The judge has understood “maintaining the status quo” as recommended by Ms Lau to mean “simply stay put”[15], or that the present arrangements of splitting up A and B in Dongguan and Hong Kong should continue. This does not appear to be a correct understanding of Ms Lau’s statement when read in the context of her report. In §29 of her report, Ms Lau set out the two alternatives of relocating to Singapore with the Father or relocating to Dongguan with the Mother. In the event of relocation to Dongguan, the children would be under the care of the Mother and the maternal grandparents as mentioned in §25, which would not be materially different from a child care perspective as compared to the present situation. In §22, Ms Lau noted the positive interaction and good sibling relationship of the children in a video call. By “maintaining the status quo”, Ms Lau would appear to mean that the care and control of the children should remain with the Mother, so that they should relocate to Dongguan with her. She was not recommending a third alternative that A and B should continue to live apart in Dongguan and Hong Kong.

94.  I next consider how the judge dealt with the above matters in (1) to (3) in the Judgment.

95.  The judge found that the Mother is not as ready to acknowledge the Father’s role in the care of the children and did not seem keen to involve him in the children’s life or consult him on important decisions of the children, such as their residence and school arrangements[16]. She criticised the Mother for involving A in parental conflict when A was just 5 years old and under the Mother’s care, and for taking no steps to correct A’s misunderstanding and misinformation that she has a step-mother in Singapore, and that the Father refused to renew her visa so she had to withdraw from kindergarten in Hong Kong and return to Hunan[17]. She also appeared critical of the Mother for making no efforts to teach B who his father is when B called the Father “uncle” during video access[18].

96.  The judge noted that the Mother has been able to maintain a close relationship with A via video calls despite the physical distance between them since October 2021[19]. She expressed the view that the Mother’s planned job in Dongguan (if she is to work overtime) does not give room for flexibility in child care and thought it “unlikely that Mother can devote sufficient time for the care and supervision of the Children”[20].

97.  As for the Father’s relationship with the children, the judge said she has not lost sight of the “rather distant relationship” between them as a result of the separation and the misunderstanding laboured by A[21]. She noted that the Father was aware of the emotional needs of the children and his recognition that relocation to Singapore would be challenging for them and is open to seek professional assistance [22]. In contrast to the Mother’s situation, the Father is able and willing to work from home on a case by case basis and to use his leave entitlements for child care[23].

98.  The judge disregarded Ms Lau’s recommendation of “maintaining the status quo” as she had understood that to mean “simply stay put”[24], which does not seem to be a correct understanding of what Ms Lau meant as explained earlier.

99.  As for A’s views on relocation as recorded in the reports, the judge noted that A was only 7 years old at the time of the reports and did not think A has “attained the maturity to appreciate the situation” in that A was unsure about the Father and the Mother’s situation and had a wrong impression the Father had abandoned them and there was a step-mother in Singapore. She decided to approach A’s view “with caution” and placed “very little weight, if any, on [A’s] view and preference on relocation”[25].

100.  Whilst the judge found A’s concerns on possible issues on adjustment and language barrier understandable, she noted that the Father is aware of and sensitive to A’s concerns and is ready to provide assistance and professional assistance if necessary. The judge also remarked that A had demonstrated strong ability to adapt and adjust and had good social skills when she moved to Dongguan, and did not think the physical distance should affect her relationship with the Mother if A should move to Singapore[26].

101.  I now balance and evaluate the factors on both sides to arrive at a decision on relocation that is in the best interest of the children.

102.  On the Father’s side, these are the matters in his favour. He has made commendable efforts to attempt to reconnect with the children through video access since December 2021 and improvements have been made in his interactions with them. There has been physical access in Hong Kong since January 2023. He has adequate resources in his current financial state to support the children. As the children are Singapore citizens, they will be adequately covered for the costs of education and health care within the country. He has long term plans for their education and is able to assist them to adjust and overcome the language barrier in the beginning, and arrange study camps and language enrichment courses for them as required. He is able and willing to work from home on a case by case basis and use his leave entitlements for child care. His parents are supportive of the children moving to Singapore and ready to render assistance with child care. His plans for the children to live with him are well thought through.

103.  The Mother has endeavoured to provide for the children to the best of her ability and resources. She has the support of her parents and sisters. Her plan of living and schooling the children in Dongguan is financially feasible. Her parents will assist her with child care when she is working. The living environment in Dongguan is safe and appropriate. A has adjusted well in every way since she moved to live with the maternal grandparents in August 2021. B should not have problem in settling down in this new environment. It is envisaged that B would attend the same primary school as A. There is no reason to think that the schooling of the children, their daily life and routine would not be stable and satisfactory if they live in Dongguan.

104.  If the children were to relocate to Singapore, this would be a disruption to their lives, particularly in the case of A who has expressed her views clearly and consistently that she would like to continue to live with the maternal grandparents in Dongguan with the hope that the Mother and B would join them. There is no suggestion that the children should be split up and each is to be relocated separately with one parent.

105.  Although A was just 7 years old when she expressed and explained her views to the social work officers, it must be noted that on the assessment of her class teacher, she is introverted, sensible and sensitive, that she behaved generously and did not hold grudges, and was able to solve problems on her own. The social work officers found her expressive, articulate and direct and open in expressing her likes and dislikes. Her genuine misgivings about moving to Singapore are not just about the language barrier and the effect on academic results. She also mentioned the uncertainty if she would still be able to contact the Mother (she has been having video chats with the Mother almost daily when they are apart and is clearly attached to the Mother), and explained why she likes to stay in Dongguan (because she likes to live with the maternal grandparents, she likes her school, her teachers and classmates are good to her, and she has friends whom she cherishes). There is nothing odd when she said she was unsure about her parents’ situation, when Ms Chew probed her more about her understanding of their situation. Whatever misunderstanding she had at one time about the Father abandoning the family and there was a step-mother in Singapore, she did not give these as reasons for not wishing to go to Singapore to live with the Father.

106.  As a rough rule, the court gives considerable weight to the views of a child above 10 years old; children between 6 and 10 years old are regarded as in the intermediate stage; and the views of children under 6 are treated as often indistinguishable in many ways from the wishes of the main carer (assuming normal development)[27]. Further, as stated by Baroness Hale of Richmond in Re D (Abduction: Rights of Custody) [2007] 1 AC 619 at §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. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right.”

107.  The judge has erred in placing little or no weight on A’s views and preference on relocation. Although she was only 7 when she expressed her views, it could not be said that her views are irrational, particularly in light of her clear attachment to the Mother, her close relatives, her friends and surroundings in Dongguan. On the description of her teacher, the impressions she made on the social work officers, and the reasons she articulated for not wishing to relocate to Singapore with the Father, I would differ from the judge that A has not attained a sufficient degree of maturity for the court to take account of her views. A is now 8 years old, and is just as unwavering about her wishes and preference on relocation.

108.  The judge would also appear to have misunderstood Ms Lau’s recommendation of “maintaining the status quo” and hence did not consider sufficiently the disruptive effect on the children’s lives in relocating to Singapore in contrast with the continuity and stability in child care and education if they were to relocate to Dongguan. Most importantly, the children are of tender years, in particular B who was only taught last year to acknowledge the Father as his father. In this stage of the children’s lives, and as the Mother has been their primary carer, her value and contribution to their welfare would have been considerable. The Father’s reassurance about maintaining consistent contact of the children with the Mother after relocation to Singapore may not have alleviated their anxieties as he had hoped. Moreover, in this instance, the Father has become rather distant to the children and it would take time to build up a rapport and develop a meaningful relationship with them. It may be in a later stage of the children’s lives, when it is not as important to their development and emotional needs to maintain physical ties with the Mother, and when the Father has mended his relationship with the children, he may ask the court to revisit the question of relocation if it should transpire that the children’s needs, which may have changed with time, would best be served if they should live with him in Singapore.

109.  Mr Chan submitted that relocating the children to Dongguan would mean that they could have both the status quo and their primary carer; conversely, they would lose both if they were to move to Singapore. This is a valid point. The cost of relocating to Singapore may be too high in this instance, although I would not go so far as to say that trauma and psychological harm would be inflicted on the children.

110.  The only relevant factor that remains to be considered is the impact on the Father of a refusal of his application for relocation, appraised in the overriding review of the children’s best interest as the paramount consideration. Ms Leung emphasised that on the judge’s finding, there would be a greater chance of the children maintaining a meaningful relationship with both parents if they relocate to Singapore, and this is a consideration pointing in favour of Singapore. This brings me to ground (3) of the Mother’s grounds of appeal, that the judge made an incorrect assumption that between the parties the Father is more proactive in maintaining or promoting a co-parenting relationship.

Maintaining or promoting a co-parenting relationship

111.  On the issue whether there is any hindrance on the children’s development of a meaningful relationship with both parents and co-parenting, the judge reached this conclusion in §113 of the Judgment:

“I would not go so far to say that Mother’s application was motivated by selfish desire to exclude Father from the Children’s life or other ulterior motive. However, having considered Mother’s views and attitude as revealed in her evidence, there is a real chance that the Children would not be able to maintain a meaningful relationship with Father if they relocate to the Mainland.”

112.  The Mother raised as a ground of appeal that the judge made an incorrect assumption that as between the parties, the Father is more proactive in maintaining or promoting a co-parenting relationship. It is not entirely clear to what extent Mr Chan sought to challenge the above conclusion in §113. His submission concentrated on the Father’s actions and attitude, asserting that the Father adopted a “confrontational approach” in the arrangements for video and physical access, and laying blame on the Father for his inability to form a relatively close relationship with the children after they were separated from him and for the Mother and B having to spend 12 hours in the police station on 8 August 2023 after the Father had reported them missing. He contended that the Father’s fear of not being able to build a relationship with the children could all be addressed by an order for staying access.

113.  Mr Chan made no mention however of the Mother’s conduct which has been mentioned in the Judgment and which the judge was apparently critical of – for involving A in parental conflict at the age of 5; for taking no steps to correct A’s misunderstanding and misinformation about the Father and to teach B who his father is when B called the Father “uncle”; for the way she handled the renewal of A’s visa application which might have led A to believe that the Father had abandoned A; for refusing to assist the Father in mending his relationship with A; for failing to involve or consult the Father on important decisions of the children such as their residence and education – on the basis of which the judge concluded in §113 “there is a real chance that the Children would not be able to maintain a meaningful relationship with Father if they relocate to the Mainland”.

114.  Ms Leung submitted that the Court of Appeal should not interfere with the judge’s conclusion which involved an assessment of different factors, where no palpable errors were identified, and the conclusion cannot be said that to be outside the generous ambit within which a reasonable disagreement is possible.

115.  I agree with Ms Leung there is no basis for interfering with the judge’s conclusion here. The facts speak for themselves. Notwithstanding the order by consent for interim joint custody made on 22 February 2022, the Mother decided on her own all the children’s affairs and did not involve the Father in any of the important decisions concerning the children. Her conduct after the Judgment and the judge’s refusal of her leave to appeal is reprehensible. She went beyond passive non-compliance with the judge’s order to taking steps to remove A from Dongguan to Hunan in an apparent attempt to thwart the relocation of A to Singapore and removing B from his usual residence in Hong Kong so that the Father would not be able to collect him. The Father’s access to the children was effectively halted. Her relatives took their lead from her with the result that the Father was cut off from all contact with the children for about two weeks, leaving him in great distress and anxiety.

116.  With this judgment, the Mother’s legal advisers would need to impress on her in the clearest terms the importance of abiding by an order of the court (including the order for interim joint custody), that she would need to obey the court order in all its terms and regardless of whether it is for or against her, that she cannot bend the law to suit her own purpose on the pretext that “court orders should at times be used flexibly and with common sense”, and that the consequence of flouting a court order could be grave and far-reaching.

117.  The impact of refusing the Father’s application for relocation, as found by the judge, must be brought into an overriding review of the children’s welfare as the paramount consideration[28]. As stated by Thorpe LJ in Payne v Payne at §41, in any evaluation of the welfare of the child as the paramount consideration, great weight must be given to the emotional and psychological wellbeing of the primary carer. Balancing all the considerations mentioned in the earlier parts of this judgment, it does seem that the best interest of the children at this stage of their lives is to relocate with the Mother to Dongguan. The consequential orders to be made herein are to promote and facilitate a co-parenting relationship, and it is the obligation of both parents to comply strictly with the orders of the court.

Conclusion

118.  For all the above reasons, we grant leave to the Mother to appeal from the Relocation Order and Judgment and allow her appeal.

Orders

119.  As leave to appeal is granted in this ‘rolled-up’ hearing on the Mother’s summons of 1 August 2023, we direct the Mother to lodge a proper notice of appeal within 7 days of the handing down of this judgment, setting out the “supplemental grounds of appeal” filed on her behalf on 29 August 2023 in the present proceedings, upon which a civil appeal action number will be assigned to this appeal which we have entertained.

120.  In respect of the appeal proceedings to be formally instituted,

(1)  We set aside the Relocation Order of 24 April 2023 and the order of 25 July 2023 on the Father’s revised proposal for transition and replace them with an order granting leave to the Mother to remove A and B, the children of the family, permanently out of Hong Kong to Dongguan, China with the Mother. This order will not take effect until the terms of defined access are finalised and determined by this court.

We will not require the Mother to seek a ‘mirror order’ from the courts of Dongguan to reflect the entire order we make on the relocation, care and control arrangements and defined access of the children to facilitate the recognition and enforcement of our order in the Mainland. This will not be necessary in light of the Arrangement on Reciprocal Recognition and Enforcement of Civil Judgments in Matrimonial and Family Cases by the Courts of the Mainland and of Hong Kong made in accordance with Article 95 of the Basic Law on 20 June 2017 and the consequential enactment of the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance, Cap 639, which came into force on 15 February 2022.

We were given to understand that a final order on custody and access has not yet been made by the Family Court pending the resolution of this appeal. We envisage it should be relatively straightforward to obtain a final order from the Family Court in light of our judgment.

(2)  We grant care and control of the children to the Mother, with defined access to the Father, in terms to be finalised for the reasons mentioned below.

Before the trial in the court below, the Father has proposed access arrangements in the event that the children are to relocate to Dongguan in respect of term time access, holiday access, special occasions access, travel arrangements and information sharing as set out in §§80 and 81 of the Judgment. The Mother has made different proposals on the Father’s access in respect of term time and long holidays in the event her application for relocation is successful as recorded in §82 of the Judgment. She has not made any proposal regarding special occasions access, travel arrangements and information sharing. As we have not heard submissions regarding access and information sharing in the event that the appeal is allowed, we will not make a final order on these matters for the time being. In the spirit of collaborative co-parenting, we urge the parties to endeavour to agree on appropriate provisions to be made within 14 days of the handing down of this judgment, failing which each party is to submit proposals to this court within 7 days thereafter for our determination on paper.

(3)  We see no reason to differ from the judge for making a supervision order of 12 months. We make a supervision order accordingly and order that an updated international social investigation report be lodged in the Family Court not later than 28 days before the expiry of the supervision order.

121.  In respect of costs, we make these orders nisi:

(1)  The judge’s costs order in §§8 and 9 (there be no order as to costs and the Mother’s own costs be taxed in accordance with the Legal Aid Regulations) of her order on 24 April 2023 are not disturbed.

(2)  We set aside the judge’s costs order nisi on 25 July 2023 that the Mother should pay the Father’s costs of her application for leave to appeal and replace it with an order that there be no order as to costs.

(3)  We make no order as to costs for the Mother’s renewed application for leave to appeal to the Court of Appeal and her substantive appeal, save that the Mother’s own costs are to be taxed in accordance with the Legal Aid Regulations. In so ordering, we have taken into consideration that the initial grounds of appeal lodged by the Mother when she was acting in person were not pursued, that she has sought to adduce further evidence on appeal (even after she has obtained legal aid) that was not relied on at the hearing and for which the Father felt it necessary to address with substantial evidence in reply, and that she has conducted herself in a reprehensible manner in failing to comply with court orders.

122.  Any party desirous of seeking variation of the costs order nisi is required to take out an application within 14 days of the handing down of this judgment.

Hon Cheung JA:

123.  I agree with the judgment of Kwan VP. I would like to express the following views of my own.

124.  The only guiding or paramount principle in a relocation application is whether the order sought is in the best interest of the child. Guidelines have been referred to in cases such as BA v BL [2019] 4 HKLRD 23 and ZJ v XWN [2018] 3 HKLRD 644 on the relevant factors to be considered to see if the relocation plan is reasonable and in the best interest of the child and there is no determinative presumption in favour of any single factor. At the same time, experience and common sense will tell us that, generally speaking, it will be less disruptive to the life of a child if he or she is to be relocated together with a parent who is the primary carer and a child of tender years is best being looked after by the mother.

125.  In my view, the judge below erred in the exercise of her discretion because while she had recognized the ‘child’s best interest’ principle, she had not properly applied it on the facts of this case. Neither parent has any real connection with Hong Kong. The Mother is a Mainland resident while the Father is a Singapore resident. They met and courted in Shenzhen. They moved to Hong Kong in 2016 after marriage because the Father’s job required him to be in Hong Kong. By the beginning of 2020, the marriage had failed and the Father presented a divorce petition in May 2020 and returned to Singapore on his own in November 2020. The Mother is in Hong Kong by virtue of a visitor’s visa to look after the son who was born here and has the right of abode here. She now wishes to return home in the Mainland with the children when there is no longer any bond to Hong Kong. In respect of the daughter, she is not a Hong Kong resident as she was born in the Mainland. She has no right of abode here and requires a visa to come to Hong Kong. She has been living in Dongguan with the maternal grandparents since August 2021. The relationship of the daughter and grandparents is extremely good and the daughter is well looked after by them. After the proposed relocation, the children will continue to be looked after by the Mother and the maternal grandparents in Dongguan. Apart from a change of surroundings, there is no disruption to the children in terms of their emotional and psychological security and stability. There is nothing unnatural or unreasonable about the Mother’s plan. It is a natural consequence of the breakdown of the marriage and it is a classic example of the typical relocation application by a mother who is the primary carer of the children.

126.  The judge, however, rejected the Mother’s plan and favoured the Father’s plan to Singapore. But in so doing, the judge had, however, overlooked the disruption to the children’s emotional and psychological well‑being. By relocating to Singapore, apart from being placed in a new environment, the children will be brought up by persons they are not familiar with. Whilst it is accepted that the Father had shared the upbringing of the children, this only lasted until he left Hong Kong in November 2020. Since he left Hong Kong in November 2020, the Father had only returned to Hong Kong twice and met the children briefly in October 2022 during the hearing below and in January 2023. The Father blamed this on the COVID restrictions and his study and new job in Singapore. He also said the Mother refused to disclose the whereabouts of the children. However, by February 2021, the Hong Kong Social Welfare Department had already approached the Father in order to prepare the Social Investigation Report as ordered by the Family Court. The Father could have sought help from that source. As observed at the hearing before us, Singapore was the first Asian country to lift the COVID restrictions. But more importantly, the Father is now almost a stranger to the two children. The Father’s plan is to enlist the support of his parents for part of the day in looking after the children. Again, the paternal grandparents are strangers to the children. In my view, the children are too young to face such a drastic change in their life. This is to be contrasted with the relocation to Dongguan when the emotional need of the children who are of tender age is being maintained as before.

127.  The Father said the Mother had removed the daughter without his consent and had been giving the children misleading information about him causing the daughter to resent him and the son calling him uncle instead of father. The stark fact is the Father had chosen to leave Hong Kong in November 2020 and from that time onwards until October 2022 he had no real contact with them and had not provided for their maintenance. For the purpose of this application, I see no point in laying blame on either parent. It is sufficient to say that there is no indication that the Mother is not otherwise a loving and caring mother for the children. This being the case, the judge had not properly assessed the disruptive consequence to the children by ordering their relocation to Singapore. In other words, the paramount consideration of the best interest of the children had not been properly applied in this case and the decision was plainly wrong. Exercising the discretion afresh, to allow the Mother to be relocated to Dongguan with the two children will be in the best interest of the children.

Hon Yuen JA:

128.  I agree with the judgments of Kwan VP and Cheung JA.