BKGGB also known as NGGB v. BKND

FCMC 1410/2019

[2021] HKFC 100

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 1410 OF 2019

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J U D G M E N T
( Relocation, Custody and Access )

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Introduction

1.  This is a trial concerning the Petitioner Mother’s Summons dated 20 December 2019 (the “Relocation Application”) for the permanent removal for relocation of the of two daughters of the family, A, born in October 2015 now age 5, and O, born in July 2018, now age 2 (together the “Daughters”).  Arising from this Relocation Application, custody and access issues shall fall to be determined. 

2.  For the purpose of this Judgment, I shall refer to the Petitioner and the Respondent as Mother and Father respectively. 

Background

3.  The Father is now aged 66, and the Mother is 39.  Both are British born and raised, Mother is of Chinese origin.

4.  They met in the UK in 2011.  At that time, the Father was divorced with two adult sons from his previous marriage, the Mother was just in the process of divorcing her then husband. 

5.  The parties came to HK in November 2011.  Father was then “semi-retired”, and Mother was intending to pursue her career in Hong Kong, she worked in the marketing role of a law firm here. The Father has no permanent residence status in Hong Kong, and is on a dependant visa on the Mother at the time of trial.

6.  Father owned a real estate / property letting business in the UK, he alleged that he had passed the business onto his son from his previous marriage in around May 2019 shortly after the Mother’s Petition; and he also owns a real estate portfolio of his own.

7.  The parties got married in Hong Kong in June 2014, the Daughters were born in Hong Kong to this union.

8.  The parties’ relationship deteriorated soon after A was born, and Mother petitioned for divorce on grounds of unreasonable behaviour in February 2019. 

9.  Following the Petition, Father stopped paying his contribution to maintenance that he had previously provided. The Mother applied for MPS on 3 September 2019, DDJ D To made an order on 10 September 2019 for the Father to pay interim maintenance of $50,000. 

10.  Mother then lodged this Relocation Application in December 2019, which was filed on 2 January 2020. 

11.  Mother has an extended family in the UK and flew back often with the Daughters for family reunion. She left her job in Feb 2020, took the Daughters to the UK, and subsequently sought leave to remain there due to the COVID pandemic.  On direction of the Court, she returned to Hong Kong in late June 2020.

The Parties respective current positions

12.  As at the time of trial, Mother and the Daughters were staying with friends and residing on Lantau Island.  A attends school nearby.

13.  During the course of this divorce proceedings, the Father has met a woman and is now living with her and her child.  He also appeared to have found a job as the director of operations at a seminary in HK, which is an affiliate of the church which he is attending; he is also working as a brand ambassador of X Limited, an online shopping business.  Neither of these are paying jobs.  In his affidavit, he has also said:

“I consider Hong Kong my permanent home now and have plans to stay in Hong Kong to spend my life after my UK retirement with [his new partner] and my church and the brand ambassador commitment.”

14.  From the making of the interim MPS Order up to the time of trial, the Father had not paid any maintenance to the Wife despite the MPS Order made on 10 September 2019.  This has clearly put the Mother in financial hardship as the proceedings ensued and she stopped working in February 2020.  Looking at the evidence before the Court, it is clear that Father has the ability to pay, but he blamed his failure upon the undertaking he has given in May 2019 as a result of which he claimed he was not allowed to access his assets in order to meet the maintenance payment; this is notwithstanding that according to the undertaking, he could have sought the Mother’s written consent or an Order of the Court to access his funds.  It was subsequently alleged by the Mother that he did in fact breach this undertaking twice, first by transferring his business to his son shortly after giving the undertaking; and on the second occasion he accessed £150,000 from his pension, that amount was used by the Father to repay loans from his sons, debts to his company, cover bank loans; but none of which were to pay the Mother for the care or interests of the Daughters.

15.  As this is not a hearing on the financial claims between the parties, I will not dwell on the details of these allegations, except that this has served as a backdrop to the Mother’s Relocation Application, as the lack of financial support from the Father formed one of the bases of her Relocation Application; and is indicative of the Father’s litigation conduct. 

16.  After the trial had finished, the Mother’s solicitors received £182,154.68 on 20 February 2021 from the refund of deposit after rescission of a property purchase.  Pursuant to an Order of DDJ S Wong dated 12 October 2020, part of this fund was converted to Hong Kong dollars, $850,000 was transferred to the Mother to settle the outstanding maintenance for 17 months, and the balance was kept in the solicitors’ account on escrow to pay out maintenance for the months going forward.

This Mother’s Application and Open Proposals in brief

17.  Mother’s Relocation Application is for return to the UK.   

18.  It is the Mother’s case that it was never the intention of the parties to stay in Hong Kong forever. According to her evidence, it was intended that they would return to UK at some time where the Father has his successful businesses, their self-owned home, and extended families on both sides.  Father has two real properties available for self-use, one called the L House, and another place at K property.

19.  The Mother is asking to return to the UK with the Daughters.  She asks for their sole custody.  There is no dispute as to care and control with the Mother, but she is asking for Father’s access to them to be supervised.

20.  The Mother’s plan is to move back to the maternal grandparents’ home in Ascot.  There she would have the support of her parents in looking after the Daughters; in particular, her mother is a certified professional child-minder and has experience in dealing with young children.  As the Daughters have spent much time with the Mother’s extended family (maternal grandparents, and Mother’s siblings and their families), they are returning to family members whom they know well.  Mother also hope to find work in order to gain some financial independence in due course.

21.  She has also found schools for the Daughters.  A has attended the L School from February to June 2020 briefly when they were in the UK during the pandemic, L School is reputedly one of the best schools in the area.  It is intended that she can return to this school; while it is competitive to get in, she did secure a place for A up until January 2021, it is not clear whether this place is still available now. O is to attend a nursery P, at Ascot, she has registered and has been offered a place.  Both schools are close to the maternal grandparents’ home, and merely 5-8 minutes’ drive away.

22.  The Mother offered video access with the Father 3 times a week, with extra time on special days: Father’s birthday, Father’s Day, Christmas and birthdays of the Daughters.  If the Father visits the UK in person, she has offered varying 3 - 5 days of day access to the Father depending on how long he intends to be in the UK, but asks for at least 4 weeks prior notice.  She also offered to return to Hong Kong with the Daughters annually for 7 - 10 days, subject to costs of the trip (travel, accommodation, and supervision) to be paid by the Father.

23.  For reasons which will be elaborated later, the Mother asks for supervised access.  If relocation is granted, she asks for supervised access by an appropriate independent professional to accompany the Daughters during access when the Father is in the UK. 

24.  If relocation is not granted, the Mother asks for an upward variation of the maintenance, including for rental payment and specific terms of supervised access for weekday and weekends.

The Father’s Opposition and his Open Proposal in brief

25.  Father denied the Mother’s position that they never intended to stay in Hong Kong in the long term.  He said that they both did not like the UK, and thought Hong Kong a safer place for the children.  That said, he said in his affidavit that:

“We therefore both agreed it would be in the Children’s best interest for them to be educated at international schools and for the Children to remain in Hong Kong permanently at least for their primary years.”

And he has also said that the K property was intended to be used as the future family home when “the family would go back to the UK for A to enter secondary school”.

26.  The Father, during a direction hearing on 10 September 2019, has indicated that he agreed to the relocation, per the official transcript of that hearing, he said:

“… if she can’t afford to stay, she would have to go back to the UK, and I am in support of that because I’d be more than happy to go back to the UK because for me it’s expensive to have two households in Hong Kong. I had said to her five years ago that if she wishes to give up work and she can do that, then she can go back to the UK”

27.  In the Updated Social investigation report dated November 2020, regarding the Father’s views of the relocation, the SWO said that:

“[Father] appreciated the good care of the children by the Mother. He expressed that he was of old age and just hoped to have the children to stay in Hong Kong longer, say for one year or more, so that he could build up closer bonding with them.”

28.  He has since changed his mind.  In his counsel’s opening submission, Father’s position is put forward as follows:

“The Father does not agree to relocation, It is apparent that steps that the Mother has taken in England with child protection agencies there have brought about the situation where, if the Father were to return to England to see his children, he would be immediately subject to a risk assessment and suspicion as a child abuser. This effectively means that he cannot continue his relationship with the Children in England due to the allegations the Mother has made against him there and the steps she had taken there, and consequently, the only way he can continue to have a proper contact with his children will be for the children to remain in Hong Kong. This is all the Mother’s doing, when she had no hesitation to tell authorities in England that the Father is a risk to the Children and is in possession of child pornography.”

29.  By his counsel’s closing submission, it has changed again:

“As noted above, F would not oppose relocation a few years’ time, when he is assured that his access has been consolidated.”

30.  He also disputes the Mother’s application for sole custody; and asks for joint custody and unsupervised access.

31.  Father’s open proposal repeatedly criticized the mother’s litigation tactics, where he accused her of making a report to the UK police in October 2019 based on her wrongful allegations against him.  He also accused the Mother of her obstructive attitude to his access.

32.  If relocation is granted, he asks for 8 consecutive days’ day access with not more than 3 days prior notice; which access to take place primarily at the Father’ residence at L House in the UK, but that he must not be restricted from taking the Daughters to any place he wishes.  He asks for staying access with the Daughters no later than when O turns 5 in 2023.

33.  There were two events that took up a large part of the oral evidence at trial, I will first turn to a brief description of the events, one is a police search of the parties’ former matrimonial home in August 2018, and the other one is about the Father’s book collection. 

The Police search

34.  The police search took place at the former matrimonial home on 15 August 2018 (the “Police search”), this was shortly after O’s birth in July.  It does not appear to be in dispute that a group of police officers attended the parties’ residence and conducted search inside the apartment of at least the Father’s computer and phone.

35.  Thereafter the versions diverged. 

36.  Mother claimed that 10 police officers came with a search warrant to investigate Father in relation to child pornography; within 24 hours after the police left, the Mother found that the Father had destroyed his computer by smashing it with a hammer.  This left the Mother extremely worried, wondered what Father has downloaded from the internet, and felt that her world has been “turned upside down”.  During the divorce proceedings, Mother attempted to find out whether the police investigation was still on-going but she was prevented due to data protection regulations.

37.  The Father denied there were as many as 10 police officers, he said in Court there were about 6 to 7 of them; he denied there was a search warrant and said that nothing was found on his computer or his phone, and maintained that there is no evidence that the investigation is ongoing.  He said that after the police left, the parties went to a shopping mall where a new laptop was purchased and paid for by the Mother. He alleged that the Mother assisted him in transferring the computer data from the old one to the new one.  He also claimed that the destruction of the hard disk of the computer was done after discussion with the Mother, and the hard disk was admittedly destroyed for fear of the police having planted a bugging device into the computer.

38.  Father produced a letter from his criminal lawyers C Lawyers (“C Lawyers”) which purported to state after investigation was made with various units of the Police, that “no case was found”. 

The Book Collection

39.  On 18 July 2019, when the Mother was going through her emails, she found an attachment with book titles of the Father’s book collection (the “Book Collection”) contained in an email from the Father, sent to her previously in March 2018, asking her to assist him to download it.  The list was of almost 20,000 book titles which covers literature of a sexual nature, of which around 650+ are suggestive of sexual content with regard to children. 

40.  I adopt below the excerpts of the list of titles collated by the Mother’s counsel in her closing submission, showing what she stated as only some of the “worrying examples”:

Daddy’s Incest Girls	A (name of the parties’ eldest daughter)
Anal Incest between Father and Daughter	Children By Desire
Eager Naughty Daughters	Sex Goes to School
Daughter’s Hot Mouth	Daughter Likes It Rough
Ripe for Seduction	The Sexual Life of the Child
Back Door Rape	The Little Book of Abuse
Daddy’s Girl	Rape of the Innocent
Incest Desires	Wild Naked Daughter
The Toddler and Sex	More Incest Fantasies: Father / Daughter
The Naked Child – Growing Up Without Shame	Daddy’s Willing Daughter
Children’s Sexual Encounters with Adults	He Lured Little Girls
She Did It For Dad!	Sex in Childhood
Group Rape: Gang-Banged Innocents	Child Sexual Abuse
Rape and Humiliated	Young Lust
Tied in the Playroom	Schoolgirl Virgins
Parent & Child: Forbidden Sexual Unions	She Couldn’t Say No
The Schoolgirl’s Rape Night	The Pleasures of Cruelty
Fathers Who Abuse Their Daughters	Forbidden Nectar
Innocence For Sale	Daughter’s Wild Urge
Horny Easy Daughter	The Tormented Daughter
Daughter Wide Open Lips	Daddy’s Incestuous Daughters
Sexing Daddy

41.  The Father’s case as presented by his counsel in her opening submission summarized his stance:

“… Also the Mother has known for all the time she has known the Father that he had a collection of books on all aspects of human sexuality. Her own father made some contributions to the collection. She has had the list of the book titles since March 2018 when the Father forwarded the list of titles to her to get her assistance in downloading the file. None of this was new to her. They form an academic collection. She knows that the books are in England, have never been to Hong Kong, and that the Father (and she) has not had access to any books since 2011 when the parties moved here.”

42.  The Father claimed that he had given his collection to his son who had on-sold the whole collection.

43.  Mother did acknowledge that she had knowledge of these books in the Father’s residence in the UK, that she knew he was a collector of “erotica materials”, but assumed they were playboy magazines and similar genre.   Under cross examination, she maintained these were on the bookshelves at the Father’s UK residence at L House, but she did not look at what was on the shelves.  She therefore did not know until July 2019 that the titles contained materials involving “paedophilic, child pornography, and incest”.  

44.  Mother also produced as evidence in court, photographs of what appeared to be a room that looks like a library, with open shelves and books on open display.  The Father said in Court that this was a converted bedroom with fitted shelves for books, and would be locked if children or guests came.  The Father’s counsel submitted that Mother had full access to and knowledge of it, and had downplayed her knowledge of the Book Collection.

45.  Mother’s solicitors have also produced covers of the books in the Book Collection, the covers that were attached to the letter from the Mother’s solicitors were quite disturbingly explicit. Father claimed that these covers did not come from his collection as Mother “had no access to the books”.  It had then turn out that the books’ covers were in fact those from books of the same titles found on the internet.

46.  These two events have clearly caused the Mother a lot of grief, they were the bone of contention of the issues at trial, and were the main reasons giving rise to the Mother’s application for supervised access.  Before oral evidence began and upon clarification questions from this Court, the Mother confirmed that she was concerned with the risk of abuse, and not complaining about actual abuse having taken place.

Erotica Art at home

47.  The Mother had also complained that the Father had refused to remove some erotica art objects and artwork at home as she did not consider them appropriate for a home with children.

48.  Father had said that some of the artwork was picked by the Mother (which was denied), but he had admitted to having unilaterally hung such artwork on the wall of their study to which A had access.  He was dismissive on cross examination, and said it was “like wallpaper”.

The Clubhouse incident

49.  In around July 2019, after the May 2019 Order which gave the Father the initial unsupervised access with A at the former matrimonial home clubhouse, the Mother reported that Father had taken A swimming (something he had never taken interest in doing before the divorce), and had asked A to undress in front of him.  She alleged that since A told her about this incident, A had been “having nightmares and feeling distressed”. The Father did not deny this incident, and even said via his solicitors’ letter that “purely to avoid having argument with your client in front of A, our client had before your client arrived, told A to change back into her play clothes.”  This incident had led to numerous exchange of correspondences between the parties. 

The Bot Bot incident

50.  Sometime in August 2019, the Mother reported that A woke up crying at 5 am from a nightmare, and said the Father had touched her front “bot bot”, meaning the front of her bottom.  Mother reported this incident to the social welfare officer Ms L, who then referred the case to the Special investigation Team on Child Protection.

51.  The SIR which came out on 27 August 2019 stated:

“The Special Investigation Team on Child Protection under the police force was consulted and … advised [that] no sexually abusive indicator could be identified with the alleged action of “touch” between a father and a female child. The incident was thus not substantiated for an investigation on suspected child sexual abuse.”

Other Access Issues

52.  In the initial Order relating to access made in May 2019 by DDJ D To, the access to A was defined but unsupervised; as for O, because she was still of a tender age, the Father’s access to her was to be in the presence of the Mother or the domestic helper.

53.  In September 2019, when the Mother addressed the Court on the concerns she had for the Daughters, exacerbated by the discovery of the titles of the Book Collection, the Clubhouse incident and the Bot Bot incident, the Access Order for the Father was adjusted to a supervised one in the presence of the Mother, the maternal grandmother, or the helper, “if the Mother deems necessary”.

54.  The Father’s case is that the access is supervised only because of the Mother’s allegation about him, based “solely on the potential risk of harm from his previous ownership of books on sexology”.  He also relied on the SIRs, which had found nothing of concern and as the relationship with the Daughters are found to be “warm and loving”, there is therefore “no evidence of the abuse that the Mother is alleging”.

55.  After the Mother’s return from the UK in June 2020, followed by a CDR hearing in July 2020, there were discussion between the parties as to who would supervise the Father’s access. This led to the Father’s unilateral hiring of his own professional nanny.

56.  Father complained that Mother would still attend these access times, staying nearby, taking photos, bringing her friends along, and appointing her own supervisor / nanny to the access.  The Father is therefore of the view that he is unable to exercise proper access to the children without interference from Mother.

57.  On the other hand, Mother’s case is that she distrusted the nanny that the Father has engaged, and complained about her inadequate performance. She said that the nanny had left the Daughters unattended, and that she was focused on taking pictures of the Daughters with the Father.  She attended the access out of concern, and found out that Father had left the designated area where the access was supposed to take place, and this nanny did nothing to prevent him.  

58.  Thereafter followed a huge number of inter-solicitors’ correspondences relating to access time, location, appointment of supervision, allegations of what should or should not have taken place during access, leading to various interlocutory hearings.

Social Investigation Reports (“SIR”)

59.  There are two social investigation reports prepared under the divorce proceedings, and one international social investigation report called for in the Relocation Application, all the officers who prepared these reports gave evidence at trial.

First SIR dated 27 August 2019

60.  The first report was prepared to address the issues on custody and access, and was done prior to the Mother’s Relocation Application.  It reported the interaction between Father and A as “natural and spontaneous”.

61.  As cited above, this first SIR was finalized shortly after the Mother informed the SWO of A’s Bot Bot incident, which reported that the incident did not amount to sexual abuse as assessed by the Special Investigation Unit.

62.  The SWO stated that her recommendations had taken into regard the Mother’s concerns but have recommended joint custody to promote co-parenting.  Her recommendations also included care and control of the Daughters to the Mother and defined access with supervision if Mother deems necessary.

Second SIR dated 17 November 2020

63.  This updated SIR was prepared by a different SWO.  This report is made in the context of the Mother’s Relocation Application, and is important in revealing certain observations

“22. … When [A] was asked about her feelings of staying with he mother and the father, A expressed to be happy with the mother and “I don’t know” with the father. She added that she only stayed at the mother’s home and played with the father. She shared that she loved both schools in Hong Kong and the UK, she shared that she could swim in the swimming pool, feed the chicken, listen to music, read books under tree and go to beach in the UK. Her best friends like Jessica were in the UK. When she was given three wishes, she wished to go back to the UK, have frozen doll and DJ party. She shared that she really hoped to go back to the UK as her “por por” as well as her mother would repair her teddy bears.”

64.  The Report reported “no irregularities or abnormal behaviours … and no cues suggesting or indicating that the father had been or would be a risk to the Children”.  It described relationship between the Mother and the Daughters as “warm, intimate and loving”, and that with the Father being “affectionate and loving”.

65.  The SWO recommended joint custody.  And with regard to access:

32. Regarding access, both parties had heated arguments on various issues including staying access, supervised / unsupervised access and the location.  Given the Father genuine care to the children and the children’s attachment with him, his continued presence in their life is important and is beneficial for their healthy growth and development.  To maintain a close father-children relationship, the access should be encouraged and facilitated. However it was understandable and agreeable to have no overnight staying access for the good sake of the children given the mother’s unsettled concerns at the moment.  The father showed understanding that it was a gradual process for staying access.  To address the mother’s concerns to protect the daughters and to facilitate the physical care of the tender aged daughters such as going to toilet, supervised access is encouraged.”

66.  With regard to the Relocation Application, the SWO was supportive:

“34. [Mother] was grown up in the UK and her family was living there. After breaking up the relationship with [Father] in 2019 and without adequate financial support at that time, it was natural and understandable that she returned to the UK to gain emotional and financial support from her families and friends. I would consider the present relocation application to the UK is reasonable as it is her home country and where she has family network and social support. The arrangement of school, accommodation and daily living and activities are well researched and investigated. I would consider her application for relocation to the UK is realistic.”

…

“38. Taking into consideration that (1) the mother’s relocation application was a genuine one; (2) the mother’s relocation proposals were realistic, practical and well researched; (3) the father-daughter relationship would not be affected detrimentally by the mother’s relocation; (4) the continuous children’s connection with the paternal and maternal family; (5) the adverse impact on the mother if relocation proposal was refused; (6) the good childcare arrangement of the mother; and (7) the intact and close mother-daughters relationship, therefore the investigating officer inclined to support the relocation application of the mother. Meanwhile, considering the importance of the children’s adjustment to the new school having started the school term in Hong Kong and the need to consolidate the father-daughters bonding as the children were of tender age, the relocation is suggested to be held in the summer in 2021, provided that the father had to provide sufficient financial support to the [Mother] and the children to support their living in Hong Kong.”

International Social Investigation Report (“ISIR”) dated 16 October 2020

67.  The purpose of the ISIR is clearly stated as “to provide the detailed observation of the living condition and environment of the family accommodation in Ascot UK, as well as various aspects of the Mother’s parenting capacity to assist the Family Court and relevant social -- authority in Hong Kong to determine the approval of the permanent removal application and the conditions of the removal including the future access arrangement.”

68.  This International Social Worker (“Ms T”) received her instructions to prepare this report, met with the Mother’s parents on 28 August 2020 and “[carried] out a home inventory and local resources checks”.  But as Mother and Children had returned to Hong Kong, Ms T conducted a virtual interview with the Mother via Skype video call on 9 October 2020, and subsequently communicated via phone calls and emails.  Ms T did not interview the Father, when challenged under cross examination (via Video link), she stated that this was because she was not asked to interview the Father.

69.  The ISIR and Ms T was also able to shed some light on the processes that ensued following some actions that Mother undertook, including calling National Society for Prevention of Cruelty to Children (“NSPCC”) in August 2019, and speaking to L School before she returned to Hong Kong in June 2020.  I shall elaborate on these events further below.

70.  The ISIR attached two documents from the Bracknell Forest Council Social Services (“Bracknell”), these involved a “Section 47 Enquiry” which was conducted.  According to Section 47 of the Children Act 1989, when a children social care services receive a referral and information has been gathered during an assessment in the course of which a concern arises that a child maybe suffering, or likely to suffer, significant harm, the local agency is required to make enquiries. The agency will conduct a Strategy Meeting to determine whether an enquiry should be initiated.  The purpose of the enquiry and assessment enables a local agency to decide whether any action should be taken to safeguard and promote the wellbeing of the child.

71.  According to Ms T, “The child protection investigation took place after the police notification to Bracknell Forest Children Social Care child protection team alerting them about the allegation made against the child’s Father in Hong Kong.” 

i.  The first report is called “Single Assessment”, this mentioned an assessment which started on 4 October 2019, with a closure date of 25 October 2019.

ii.  The second report is called the “Bracknell Record of Outcome of s.47 Enquiries”, this was dated 14 October 2019, which cited that Police received information “by way of NSPCC referral”, the “Strategy Discussion” was held on 7 October 2019, and that the reason for the s.47 enquiry was “Notification from the Police that the children are returning to the UK and communication with the Mother has confirmed a visit to assess the children and any harm that they might have suffered taking into consideration the allegations of the content / material that the father has and some behavioural concerns from A.”  The police visited Mother on 9 October 2019 when she was back in the UK for her brother’s birthday. 

iii.  The contents of the two reports are largely the same.  The result of the Enquiry was that “the concerns are substantiated but there are strategies in place to mitigate against these risk including supervised contact and an ongoing criminal investigation.”  As mentioned above, the enquiry was closed on 25 October 2019. 

72.  Ms T was supportive of the Relocation Application.  In her recommendations and conclusion:

“It is my professional view that [Mother] should be permitted to continue caring for her children as a main sole carer to the children. This is because the children’s comprehensive needs are adequately met by [Mother] with support of their maternal family members in the UK.”

“Based on the information made available to me, my conclusion is that [Mother], with the vast amount of dedication and commitment of maternal grandparents, is in a strong position to remain as a main carer to A and O. My recommendation for granting [Mother] a full custody and the relocation to the UK stands valid, even with no regard to the allegation made against [Father].

Due to [Mother] not having family support, her own accommodation and the source of income in Hong Kong, the conditions in the UK would offer her opportunities and conditions to enable her to provide better care for her daughters.”

Father’s relationship with the Daughters

73.  Father has claimed that he was a hands-on father with A, as the Mother was still working after she was born, and Father had no work engagement in HK.  O was born 6 months before the Petition, so has spent less time with the Father, who has said on affidavit that O is the child of another man.  This allegation was not pursued at the trial.

74.  There is clear consensus in the two SIRs, which confirmed that the relationship between the Father and the Daughters is positive.

75.  Both counsel have addressed the Court on this point. The Mother says that despite all their differences, she has ensured that the Daughter’s relationship with the Father remain untainted by her concerns and these proceedings; and the Father says that “M has not simply proven at the Trial on the balance of probabilities that the above false allegation she made against the F are true.”

Issues

76.  The following issues are before the Court

i.  Should the Mothers’ relocation application be granted.

ii.  What should be the custody Order to be made for the Daughters.

iii.  What access arrangement should be put in place for the Father whether or not the Relocation Application is granted.

The Legal Principles with regard to Relocation

77.  The general principles are set out in s.3 of the Guardianship of Minors Ordinance (Cap. 13) which states that:

“(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 wishes 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;”

78.  Section 48C of the Matrimonial Causes Ordinance Cap179 also provided that:

“…Section 3 of the Guardianship of Minors Ordinance (Cap 13) (which provides that the welfare of the minor shall be the first and paramount consideration) shall apply in relation to any order for the custody care or supervision of a child which may be made under this Ordinance or the Matrimonial Proceedings and Property Ordinance (Cap192).”

79.  The applicable principles governing relocation application were based on the English Court of Appeal case of Payne v Payne [2001] Fam 473 and adopted by our Court of Appeal in SMM v TWM [2010] HKFLR 308, [2010] HKLRD 37 CA where Cheung JA summarised them at §21 of his judgment as follows:

“1) The distinct features of a relocation application are first, the applicant is invariably the mother and the primary carer; second, generally the motivation for the move arises out of her remarriage or her urge to return home; and third, the father’s opposition is commonly founded on a resultant reduction in contact and influence. (per Thorpe LJ at paragraph 27)

2) The two propositions that have been consistently applied by the Courts are, first, the welfare of the child is the paramount consideration; and second, refusing the primary carer’s reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the Court concludes that it is incompatible with the welfare of the children. (per Thorpe LJ at paragraph 26)

3) The application should be approached as follows :

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

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

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

(4) The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist in so far as appropriate. (per Thorpe LJ at paragraph 40)

4) In short, the relevant factors are :

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

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

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

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

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

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

(7) The opportunity for continuing contact between the child and the parent left behind may be very significant. (per Butler-Sloss P at paragraph 85)”

80.  In the recent case of BA and BL (Child Relocation) [2019] 4 HKLRD 23 the Court of Appeal reiterated and further elaborated on the approach to be taken in relocation cases. 

“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.”

81.  HHJ I Wong has in his recent case of JTMW v NAV FCMC 8504/2017 [2020] HKFC 244 succinctly summarized important points of principles enunciated in the case of ZJ v XWN at paragraphs 52 - 56:

52. Recently, in ZJ v XWN (Leave to Appeal: Child Relocation) [2018] 3 HKLRD 644, [2018] HKCA 436, CAMP 67/2018, the Court of Appeal, after having reviewed K v K (Children: Permanent Removal from Jurisdiction) [2011] EWCA Civ 793, [2012] Fam 134 and Re C (A Child) (Internal Relocation) [2016] Fam 253, confirmed that the only principle of law enunciated in Payne is that the best interests of the child is paramount and the rests is guidance and that Cheung JA’s comments in SMM v TWM should be read in that light: at [18] and [23].  The Payne guidance should not be regarded as a prescriptive blueprint: at [22].

53. The Court of Appeal endorsed what Vos LJ said in Re C (A Child) (Internal Relocation) at [82] and [83],

82.  I add a few words in an attempt to summarise the position that has now been reached. As counsel before us agreed, in cases concerning either external or internal relocation the only test that the court applies is the paramount principle as to the welfare of the child. The application of that test involves a holistic balancing exercise undertaken with the assistance, by analogy, of the welfare checklist, even where it is not statutorily applicable. The exercise is not a linear one. It involves balancing all the relevant factors, which may vary hugely from case to case, weighing one against the other, with the objective of determining which of the available options best meets the requirement to afford paramount consideration to the welfare of the child. It is no part of this exercise to regard a decision in favour or against any particular available option as exceptional.

83. One of the most difficult aspects of this case has been to establish in the light of previous authority what use, if any, should be made in the process we have just described of the 4 “disciplines” identified by Thorpe LJ at paragraph 40 of his judgment in Payne v. Payne ([2001] EWCA Civ 166, [2001] 1 FLR 1052) (the “ Payne factors”). In my judgment, one of the valid concerns about the Payne factors is that they do not adequately reflect the gender-neutral approach to these problems that the court will now adopt in every case. Whilst the Payne factors may still be of some utility in some cases, they are no part of the applicable test or the applicable principles. In some circumstances, the judge may find them useful. In others, the judge may not. If the judge finds them a useful guide to some of the factors that he should consider, he will be doing so only as part of the multi-factorial balancing exercise that is required.  (emphasis added)

54. The Court of Appeal also dealt with the use of the “welfare checklist” in the balancing exercise.  The “welfare checklist’ is only an aide-memoire.  A judge is not required to mechanically list every factor to demonstrate that he has considered the same. 

55. The Court of Appeal emphasized that the guidance in Payne or SMM v TWM or the welfare checklist are simply tools to assist a Family Judge in making the multifactorial assessment to reach a result which is in the best interest of the child after taking account of the potential impact on the parents: at [30].

56. Therefore, I would have to conduct a holistic balancing exercise and in doing so, I would make use of the Payne approach and the “welfare checklist’ as an aide-memoire tools.

82.  For the sake of completeness, I will cite what is known as the checklist factors, which have been listed in our “Children’s Proceedings (Parental Responsibility) Bill, and has yet to be passed as law in Hong Kong.  These are factors that should be taken into account when determining issues relating to children and where their best interest is to be considered:

“(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 change in the child’s circumstances;

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

(f) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

(g) Any harm which the child has suffered or is at risk of suffering;

(h) Any family violence involving the child or a member of the child’s family;

(i) How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(j) (a broader formulation along the lines of) the practical difficulty and expense 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;

(k) The range of powers available to the court under this Ordinance in the proceedings in question.

(l)  Any other fact or circumstance that the court thinks is relevant.”

Issue 1: Should the Mothers relocation application be granted?

Is the Mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the Father from the Daughters’ lives?

83.  The Mother is returning home to the UK where she was born and raised, and where her parents are; her venture out to Hong Kong with the Father in pursuit of a career has ended with her intention to be the main carer of the Daughters, these divorce proceedings, and the pandemic.  With the need to take care of two young children, no personal income and the difficult experience in obtaining financial support from the Father, it makes sense for her to go back to the UK, where she can re-establish her life, and where she has emotional and child caring support from her extended family. 

84.  The ISIR has confirmed that her parenting capacity, intended accommodation, the living condition, her parental support, and local resources are positive and in support of her Relocation Application.  

85.  I accept that this is a reasonable move on the Mother’s part, and that her motivation to relocate is genuine; and not motivated by some selfish desire to exclude the Daughters from the Father.

Is the Mother’s application founded on practical proposals both well researched and investigated?

86.  The Mother plans to live with her parents on her return to the UK.  Her proposal states that “the Mother and Children will move back to the maternal grandparents’ house … in the short to medium term to recover financially and to benefit from the support of her family”. 

87.  During the trial, the Mother has actually said that she has a job waiting for her on her return, the workplace is within a short distance from her parents’ home; this would give her the opportunity to regain a certain degree of financial independence; and the Daughters can be looked after by the maternal grandparents while she is at work.  Although it is not clear whether this job is still available but it does show that the Mother is able to secure work close by her parents’ home.

88.  The Daughters are familiar with the maternal side of the family, having spent a number of holidays with them, and the maternal grandparents had been to Hong Kong to assist the Mother with looking after them.

89.  As for education, the Mother had placed A at the L School, where she attended briefly between the period from February to June 2020.  This school is 8 minutes’ drive from the maternal grandparents’ home.  The Mother said that this school was previously attended by the Father’s sons from his previous marriage, and was reputed to be one of the best schools in the area.

90.  O is registered with a nursery school which is only 5 minutes’ away from the maternal grandparents’ home.  Apparently, her education is free with the subsidy of the government.

91.  In the consideration of this aspect of the Relocation Application, I rely on the independent evidence of the ISIR, and I quote hereunder some relevant paragraphs from Ms T’s report. 

92.  With regard to the living condition, the following observations were made: 

“The home space is appropriate and adequate and to house several family members… It is in a pristine-clean condition throughout the house … No safety hazards … it is a home with the children in mind with many evidence of close family relationship … The garden is a moderate size, certainly enough for an alfresco dining, sun bathing and a small play area (ie a slide and a climbing frame) and it is well enclosed for security …. The area is conveniently located for the necessary amenities to meet the children’s medical, education and leisurely needs.

“… observed evidence of structured learning and playful activities at home …; age appropriate toys and books in the children’s bedroom upstairs and playroom downstairs, a climbing frame and a slied in the garden that enhance the children’s gross motor skills.”

93.  With regard to the support of the maternal grandparents, who are respectively age 76 and 61, and described by Mrs T to be in good health condition:

i.  “Based on the interview with [Mother] and her parents separately, there was a strong sense of their commitment to give the children normality and stability, through providing daily routine through schooling and activities even through the exceptional circumstance under the lockdown.”

ii.  Ms T had noted that the maternal grandmother is “a professional and registered child-minder and a school nursery teacher, with a qualification as a paediatrics first aider.”  The maternal grandmother had also indicated her willingness to give up her paid work as a child minder to look after A and O, so Mother can “get her life back by resuming her career”.  Ms T also recorded that the maternal grandmother has “particularly demonstrated her awareness of the impact of adult conflicts on the children’s mental and emotional wellbeing of the children”.

iii.  The Mother’s father “also spoke about some practicalities of their living arrangement that would help his daughter to stand on her feet soon enough.  He asserted that she does not have to pay rent or childcare whilst living with them, and therefore can focus on finding a good job for her financial independence …”.  He handed a letter to Ms T which expressed his commitment to support his daughter and the grandchildren, this letter was attached to the ISIR.

iv.  “With [the maternal grandmother and grandfather] together owning such a higher level of an insight into the impact of the domestic abuse on the children’s emotional wellbeing, I feel assured that they would be able to regulate their emotions in front of the children if there ever would be a tensed situation with the household members.”

94.  Mother’s counsel stated in her closing submission that there was no cross examination or challenge to the Mother’s relocation plan, Father never commented negatively or criticized Mother’s intended move back to her parents and that this must means that the Father considers the Mother’s relocation plans to be acceptable.  I accept that assessment.

Is the Father’s opposition motivated by genuine concern for the future of the Daughter’s welfare or is it driven by some ulterior motive

95.  As stated above, at a Hearing on 10 September 2019, the Father stated that he was in support of the relocation.  The transcript of that hearing was part of the hearing bundle and clearly recorded what the Father said, “I think the Children would be better catered for … with lesser expenses in a different jurisdiction.”

96.  The Wife’s counsel closing submission pointed out the discrepancy between what was said by him in September 2019, and his affidavit dated 17 April 2020, before the certified transcript from the Court was obtained.  Quoting his affidavit:

“The Petitioner … alleged that I had indicated at the hearing dated 10 September that I was in support of the Children relocating to the UK. I deny I have ever said so, and alternatively, even if I have, my words have been taken out of context by the Petitioner …

… Alternatively, even if the transcript prepared by the Petitioner’s solicitor was in fact accurate, I contend that my words in support of the Children’s permanent relocation were taken out of context.  When I said those words even if I ever did, I was simply comment that I was agreeable for the Petitioner to go back to the UK so that the Children would be better catered for by me in Hong Kong.”

97.  What the Father was quoted to have said came from a transcript from the Court, and this version in his affidavit clearly contradicted what he said in Court in September 2019.

98.  I acknowledge that the Father’s opposition to the Relocation Application is driven by some concern that he might not be able to see the children because of what he alleged that the Mother had done.  He claimed that due to the Mother’s report to the Police / authorities in the UK, he would be investigated should he return to the UK.

What Mother did that caused this reaction

99.  The Father’s counsel accused the mother of setting out a “game plan to retain her control over the children to the exclusion of the Father”.  And that it was a “deliberate plan” which net effect is that the Mother has “well and truly poisoned the well in England, such that it is inevitable that should F wish to exercise access in England, a risk assessment will be carried out pursuant to the S. 47 enquiry.” (my emphasis)

100.  The evidence before the court on the August 2019 incident was that Mother had contacted NSPCC in the UK to seek help.  The timing actually coincided with her having just received the first SIR, which was the report which cited that there is no child sexual abuse between a father and a female child on mere allegation of touching.  According to her evidence in court, Mother stated that she was looking for help, and NSPCC came up in her search on the internet.  Under cross examination, when challenged as to why she did not seek further help from the Hong Kong authorities she stated that she was surely entitled to seek help from more than one source. To this the Father’s counsel submitted that “The only conclusion that can be drawn is that M specifically triggered this enquiry in England as she was not achieving what she wanted in Hong Kong.  M’s failure to disclose the extremely serious investigation in England in her affidavit on relocation warrants a dismissal of her relocation application at stage 1”.

101.  I disagree with the Father’s contention and accept the Mother’s position, especially when the SIR did not seem to give her any reassurance or guidance on what she believes to be a concern.  She was challenged why she went to a UK resource, and she said:

“… when one is looking for advice, there is no need to use just one source and when I am looking online, I am from the UK and it is much easier to talk to someone fluent in English. Quite frankly, this support is easy to find in the UK and I still don’t know where in HK I would have this type of advice from a non-profit perspective. I don’t know why I can only ask for Ms Lau’s (the SWO) advice.”

102.  I also accept that she has gravitated to towards agencies in the UK as that is where she came from.  Under cross examination, Mother explained that she called the NSPCC Helpline, and that it was a “plea for help”, and not a report to the police.  She said:

“There was no reporting being done, it was contacting a charity for advice”.

“… Advice on how I can protect two young girls from child abuse as a concerned mother”.

103.  More importantly to answer the Father’s allegation that she had reported to the police, the “Single Assessment” from Bracknell stated clearly that the Police was alerted in August 2019 by NSPCC. 

104.  Letters were produced in Court which explained that the Police contacted the Mother to follow up on the matter in September 2019.  The abovementioned Bracknell reports also stated that the investigation that took place in October 2019 was as a result of the police being informed by border patrol that the family has returned to the UK, and they contacted the Mother to arrange for an assessment. The police and CSC visited the mother as a result.  I therefore do not accept the Father’s contention that Mother had deliberately contacted the authorities to report on the Father.

105.  The Father cross examined Ms T about the Mother’s phone call to NSPCC which triggered a report to the police.   Ms T was clear in her evidence that it was not the Mother who made a report to the police; nor was there any evidence that the Mother was aware that her call would lead to an investigation being opened.  I therefore believe her when she said she did not know the internal process after her call to NSPCC.  The police thereafter informed Bracknell, which then initiated a s.47 enquiry in October.  This investigation was closed at the end of October 2019.

106.  In June 2020, Mother spoke to the L School which A was then attending.  Mother explained in court that she went to speak to L School when the Father’s solicitors wrote to the school in May 2020, that she had not intended to inform the school about the divorce but as the Father did, she went to speak to them to “give them context”.  According to the ISIR, she did this because she was “worried about A’s emotional and behaviours needs for being exposed to domestic abuse and potentially being subject to sexual abuse”.  Ms T reported that as a result the Mother’s conversation with the school, “Following the child protection procedures, L School shared this with Bracknell Forest Counsel Social Service.”  The record of contact from Bracknell showed that this took place on the 24 June 2020, the Mother’s concern was acknowledged but was told no safeguarding procedure would be put in place until the Mother has relocated back to the UK.  The case on that contact was then closed. 

107.  Again, the authorities were alerted only because the Mother was speaking with the school about her concern for A, and this triggered off the child protection procedures resulting in the authorities being informed. 

108.  There was no evidence to support the Father’s insistence that the Mother had made a referral to the police to deliberately taint him. 

109.  The Father holds a different view.  When asked in cross examination, the Father claimed that “UK has been contaminated by my wife … my wife makes up these allegations, if I go back with this shadow hanging over me, all my wife needs to do is to phone up some authorities in the first instance of access and then I will be under investigation …   I am worried about the report, they have damaging inferences to me and I need to sort that out before I can be reassured as to access.”   His counsel went on to say “That sums up the consequence of the steps taken by M in England, again with no evidence whatsoever, but guaranteeing problems for F in maintaining his relationship with his children.” (my emphasis)

110.  The Father’s case implied that he would most definitely be subject to an investigation when he returned to the UK.  I am not convinced this is the case.  There is no evidence before this Court that he will be automatically investigated (if at all) once he lands in the UK; if this were the case, he would have adduced evidence to this effect.

111.  From the ISIR, Ms T reported that in the context of the Mothers concern about the Police search and the Bot Bot incident

“Mother shared that she was advised to report to Bracknell Forest Social Service, when they return to UK fully.” (my emphasis)

In her recommendation regarding access arrangement, Ms T said:

“[Mother] should contact her local social services to seek their advice and guidance concerning the access upon their return to the UK. [Mother] is already advised so by her local social services in her initial contact with them in 2019. They may conduct a risk assessment on Father ‘s access with the Children.” (my emphasis)

112.  In cross examination, Ms T gave evidence that either of the parties can refer this case for investigation, but did not say that the Father will be automatically investigated on his return. 

113.  Even if the Mother were to initiate an investigation, the Father would have sufficient opportunity to clear his name if he was wrongfully accused by the Mother.    Reflecting on the Father’s position when he said he “would not oppose relocation a few years time when he is assured that his access has been consolidated”.  I fail to see how a few years is going to help his concern of an investigation by the UK authorities if he does not clear the matter with them.  Indeed, I can see that it is to the Father’s advantage to do so proactively, to enable him to see the Daughters and to ensure that his future access is unhindered. The Father said it would be difficult for him to clear his name with the authorities, but no evidence or authorities were put forward as to what such difficulties might be. 

114.  In consideration of the case under this head, I have also borne in mind the fact that the Father’s roots, businesses (although allegedly passed onto his son), homes and financial assets, are in the UK; it is difficult to conceive that he would not return to the UK for fear of being investigated.  I am also conscious that he now has a partner and some jobs here, and although he has not put forward these factors as a basis of his objection to the Relocation Application, I have considered this and whether this should be a factor in considering whether the Daughters are not allowed to relocate. I am satisfied that this is not a valid reason that should impede any relocation of the Daughters.

What would be the extent of the detriment to the Father and his future relationship with the daughters were the relocation application to be granted

115.  All the evidence from the two SIRs showed that the Father has a good relationship with the Daughters.  In the updated SIR, the SWO observed, on 21 October 2020, the Daughters relationship with the Father was “affectionate and loving”. And “It was observed that both girls interacted happily with the [Father] and had close and natural “relationship by sitting on his lap.”  She has also stated that “the father-daughter relationship would not be affected detrimentally by the mother’s relocation”.

116.  Despite the Father’s complaints that his access to the Daughters has been obstructed by a dictatorial Mother, his positive relationship with the Daughters points rather to the Mother’s facilitation of access to the Daughters, and her efforts to make sure that the acrimony between her and the Father does not affect the Daughters nor impact their relationship.  I believe the Mother’s evidence in this regard.

117.  Electronic access has worked in the past when the Mother was visiting UK.  There is no reason why this electronic access could not or would not continue if the Mother’s Relocation Application is granted.  While the Mother was in UK with the Daughters, she had also continued to send their photos and videos to the Father, including a Father Days’ card made by the Daughters of which the Father had not acknowledged receipt.  This is also evident of the Mother’s efforts to ensure that the Father remains connected to the Daughters, and vice versa.

118.  There is nothing to prevent the Father from returning to UK at any point of time; he is from the UK while his stay in Hong Kong was based only on a dependant visa to the Mother.  Mother has offered supervised day access to him when he returns to the UK. 

119.  I also take cognizance of Ms T evidence in cross examination, that the Mother is very committed to enabling the relationship between the Father and the Daughters.  Mother had also said that she would not allow her family to speak ill of the Father, Ms T felt that the Mother did not want the Father to be presented negatively in front of the Children.  I accept Ms T’s evidence and her assessment of the Mother’s position on this.

To what extent would that detriment be offset by an extension of the daughters’ relationship with the maternal family

120.  The Daughters have spent a number of holidays with their maternal grandparents.  The Mother has returned to the UK frequently, she said in oral evidence at least twice a year and always at Christmas; and the Daughters are close to their maternal grandparents and the Mother’s siblings.

121.  There does not appear to be in evidence that there is a relationship between the Daughters and the Fathers’ children from his previous marriage.  If there is, then it is also an opportunity for this to develop when the Daughters are back in the UK.

122.  The Daughters would benefit enormously from the support of and in building a relationship with their extended family.

What would be the impact on the Mother of a refusal to her realistic proposal

123.  Refusal of the Mother’s application would no doubt have a negative impact on her, and hence negatively impact on her care for the Daughters.  She has no close family support and is practically alone in Hong Kong.  In particular, the living standard in Hong Kong being high, she would be at the mercy of the Father in terms of financial support, and based on history of these proceedings, this would cause her stress and hardship going forward. 

124.  The SWO in the second SIR put it succinctly:

“37. It is understandable that, if the relocation application is not allowed, [Mother] would be very disappointed as she has a stable living and intensive family support in the UK. If she stays in HK to take care of the children, she will lose the family support and it is difficult for her to raise the children mainly on her own. [Mother] alleged not able to secure a similar job here in HK and therefore she might have difficult in supporting and maintaining good school and accommodation for the children. In other words, refusing the mother’s relocation application would likely impact detrimentally on the welfare of the children. More importantly, it would also not in the bet interest of the children when their mother was constantly under emotional stress and financial insecurity.”

125.  I acknowledge that the Mother will have difficulty finding a job in Hong Kong in the current economic environment even if she wanted to; but no doubt looking after the Daughters will be her priority.  I accept and agree with the SWO’s analysis.

Overall what would be in the best interests of the Daughters?

126.  The Daughters’ lives have been in limbo for more than a year, they have been moving around in terms of accommodation and schools, their financial support have been compromised.  Stability and familiarity must clearly be in their best interest. 

127.  Having carefully considered all the evidence and the views of the social welfare officers and Ms T, I consider the Daughters’ interests would be best served by the Mother’s relocation with them to the UK. 

The Legal Principles with regard to Custody

128.  In this case where Mother is asking for sole custody and the Father joint custody, both parties have referred me to the seminal case of PD v KWW (Child: Joint Custody) [2010] 4 HKLRD 191, it is clear that the best interest of the child is the paramount consideration of the Court. 

Joint Custody: the proper approach

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

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

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

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

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

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

Issue 2: What should be the custody Order to be made for the Daughters

129.  It is the Mother’s contention that it has been impossible to communicate with the Father effectively with regard to the Daughters due to Father’s extreme ideas being vastly different from hers.  In this regard, she cited his approach to medical treatment including his view not to vaccinate the Daughters, that suncreen caused cancer, that he returned a book about space to the library because he does not allow them to learn about science; he called the animation movie “Frozen” occult, and the Mother has exhibited emails which seemed to suggest that the Father believed the earth was flat.  The Mother complained that he had been deliberately obstructive and aggressive in his communications and had left the Mother with no choice but to go to Court for numerous applications including trips to the UK, interim maintenance, remaining in the UK pending the global pandemic, appointment of supervisors for access; hence leading to exorbitant legal fees which she could not afford and have left her in debt.

130.  The two SIRs were both supportive of joint custody

131.  The first report was prepared to look at the issue of custody, care and control of the Daughters. With regard to custody, it says:

“Despite that the Petiton[er] Mother was unwilling to try on the cooperation, joint custody should be promoted for co-parenting in view of the Respondent Father’s demonstration of sincerity to the Investigating Officer to understand and respect the Petition[er] Mother’s right of daily care and control over the daughters. Joint custody to enforce the learning of co-parenting and to protect the rights of both parents in the nurturing responsibilities of their daughters was believed to be beneficial to the upbringing of the children with divorced parents.”

132.  However, I also observed that in her recommendation, this SWO proposed the following and it suggested that there was a recognition of the strife between the parties with regard to some basic decisions regarding the Daughters:

“The Petitioner Mother is given care and control of the children, and the Respondent Father shall respect the Petitioner Mother’s decision over the care and control of the daily and basic issues of the children including food health and medication.”

133.  The Updated SIR echoed the recommendation of joint custody:

“Joint custody had the value of stimulating the normative family system, supporting the continuation of the parent-child role, promoting their continuing parental responsibilities, and reducing the negative impacts of separation to the children. Having considered the benefits of joint custody, I would recommend joint custody in this case which is considered to the best interest of their children, despite that the parents were still holding a mistrusting attitude to each other.”

134.  I am conscious of the difficulty in the relationship and recognize the uphill efforts that the Mother has to make to discuss matters with the Father.  I am also conscious and agree that the Father has, for whatever reasons he deems more important, made matters challenging for the Mother.  I have read the communication between the parties via emails and Whatsapp, and noticed the Father’s unnecessarily strong language and accusatory tone he directed at her.  He had even called her a “compulsive liar” in Court.

135.  In this regard, I have reminded myself of the authorities which stated that “the general rule of thumb is that joint custody should only be ordered where the parents are able to work together effectively.”

136.  I would also quote here the authority put forward by the Mother’s counsel in the case of ML v LJ [2008] HKFLR 88 where Recorder Rimsky Yuen gave guidance to these principles:

“24. In the light of these authorities, the position can be stated as follows:

(2) In considering whether to grant joint custody to both parents or sole custody to one of them, the first and paramount consideration is the welfare of the child.

(3) Whether or not a joint custody is workable depends very much on whether the parents can co-operate. A court may refuse to grant joint custody if there is no reasonable prospect that the parties will co-operate. Whether or not there is such reasonable prospect is a question of facts. If there is no reasonable prospect of co-operate between the parties, an order of join custody can be a recipe for disaster and contrary to the best interest of the child.

…”

137.  Throughout the history of this Court in making decisions of sole versus joint custody, it has faced varying factual matrixes which have led to one decision over the other; but in my view, at the end of the day, the assessment must be weighed between the parties’ ability to “work together” and what is in the best interests of the children.

138.  The Mother has protected the Daughters well and they have not been affected negatively by the difficulties in the communication between their parents.  Weighing all the considerations, I am of the view that joint custody, allowing the Father to participate in a parental role, and from a distance if he chooses not to return to the UK, is beneficial to the Daughters in their overall development; so long as their interests are not affected.  

139.  I will therefore make an aspirational Order for joint custody, and I am hopeful that once this Relocation Application is behind the parties, and the Mother and Daughters have settled down in UK, that Father and Mother will be able to put aside the mistrusts and accusations so as to communicate for the best interests of their children. 

Issue 3: What access arrangement should be put in place for the Father if the Relocation Application is granted

140.  It is the Father’s case that the Mother has been obstructive of his access to the Daughters.  His counsel claimed that “Father was constantly prohibited from bonding with his Children by M’s gross litigation misconduct and her dictatorial and obstructive approach towards access.”

141.  I am not of the view that the Mother was deliberately obstructive with a view to ousting the Father from the Daughters’ lives.

142.  The Mother has provided her proposals prior to the trial regarding access arrangement for the Daughters should her Relocation Application be granted. These include video access, and time available to the Father when he visits the UK, and her offer to bring the Daughters to Hong Kong if the Father remains here provided he pays for the costs of travel, accommodation and supervision. 

143.  These proposals were not challenged in cross examination, the only issue before me therefore, is whether the access the Father has going forward should continued to be supervised. 

144.  In making my determination on this point, I return to the bases upon which the Mother is asking for supervised access for the Father.  This relates in particular to Police search and the Book Collection.

The Police search - Discussion

145.  I have said above how the parties’ evidence differed in terms of what happened during the Police search.  To start with, I would say here and now that I found the Father’s evidence on this incident to be evasive and contradictory.

146.  The Father stated in his affidavit that:

“The Petitioner referred … in her 3^rd Affirmation to a police investigation … in August 2018, where 10 police officers with a search warrant investigated me in relation to suspected possession of child pornography. The police officers looked through the apartment, including all cupboards and drawers. They have also gone through my mobile phone and my laptop, in which they plugged a device, and looked through the digital history.”

  But he retracted from that in his oral evidence to say it was less than 10 police officers, about 6 to 7, but could not remember the exact number.

147.  The Father never denied there was a search warrant before the hearing but he denied there was a search warrant in court, then he claimed not to know what a search warrant was, and said words to the following effect:

“I do not know what a warrant looks like … They may or may not have a warrant. No one produced a warrant. To say there was a warrant is wrong when there is none in evidence. … If there was a reason to search the flat, it is hearsay evidence.”

“They showed me a piece of paper with my name on it and mentioned nothing about child pornography which my wife invented and they found nothing.”

148.  There is no search warrant in evidence as the police would always take it with them after the search.  The Father’s denial of the events in court was also contradicted by the letter written by his then solicitors, which stated that “the police did arrive unexpectedly asking to search the apartment for alleged illegal images of children.”  Under cross examination, he stated that “Unlawful images of children are not child pornography.”

149.     Father had, in his affidavit further blamed the Mother as being behind this whole police search incident, as part of her plot to leave him,

“I verily believe that the Petitioner had contrived all of this and most possibly instigated the 2018 police investigation against me to maliciously use this allegation against me prior to her issuing these divorce proceedings to seek for sole custody and restrict my access with the Children.

This accusation was not followed through by his counsel at trial.

150.  The Father destroyed the computer with a hammer after the police left.  But according to him, not before he and the Mother went to buy a new laptop and transferred data from the old computer to the new one.  Mother said that she only helped him to transfer information to an external hard disk, and she had no knowledge of the Father’s intention to destroy the computer.  She said they purchased the new computer after the old laptop was destroyed. 

151.  I found this act of destruction rather drastic, the Father explained this by saying that he thought the police had put some sort of bugging device into his laptop.  This explanation is also strange since he had already bought a new laptop he could use, why would a planted bugging device (if there was one) in the old laptop affect him?  I agree with the Mother’s submission this is more likely in line with an attempt to destroy what is inside the original computer instead getting rid of a bugged computer, and / or in the Mother’s words, out of worry that the police would return to take away his laptop.  Under cross examination, he failed to explain why he was destroying the laptop, except to say that he did not know where the hard disk was, so he opened the laptop, saw a metal casing, and he smashed it. 

152.  Under cross examination, he claimed that he did not know what the police had done. But again, this contradicted his aforementioned affidavit and his instructions to his then solicitors when writing to the Mother, where they said that he provided all contents of his mobile phone, his laptop to the police and “they copied all of his online history”.

Letter from C Lawyers 

153.  The covering letter from the Father’s then solicitors said this:

“We are further instructed that our client’s criminal lawyer was informed by the police that there was no file opened regarding the investigation on our client. However, the police would not issue any letter to confirm this in writing.” (my emphasis)

154.  The following came under the letter of C Lawyers dated 3 July 2019:

“Based on the limited information provided by the Police, our firm was instructed to make enquiry to the Police and find out whether there is any ongoing investigation and if so, the status of such investigation.”

“We in turn have approached various units of the Police in an attempt to find out whether there is any ongoing investigation. All the approached Police units revert with a unanimous answer, no case was found.”

“In the light of the replies by the Police that there is no case found in relation to the incident in or about August 2018 after the thorough check by the Police, there is unlikely to be any active investigation undergoing by the Police against our client.”

155.  I find the letter from C Lawyers casts more questions than it was supposed to answer. The letter stated that there were “limited information provided by the police” but did not say what information, and that “various units of the Police” were contacted by C Lawyers but did not say which ones.  The Father was asked in Court to produce a list of units that C Lawyers approached, but no list was ever produced by him.  The letter did not say that the investigation was closed, but instead said in the light that there was “no case found”, “there is unlikely to be any active investigation”.  In my view, there is nothing to convince this Court that the exercise conducted by C Lawyers on this issue is a complete and conclusive one. 

156.  I am of the view that it is very unlikely for 10 police officers to enter a premise without good cause, nor likely that that they had no warrant at hand to justify their intended investigation at the premise.  If there was a warrant, there must be a reasonable cause to support its issuance.

157.  My view is that the Father has been evasive under cross examination on this topic and I do not believe his evidence when he said there was no search warrant or that he does not know what a search warrant is or that he did not know what the police had done.  If he was shown a piece of paper with his name on it when the police entered, why would he not say what the paper was.  I am not satisfied that he did not know the reason for which the police went to the apartment.  The Father offered for the Mother to follow up this matter with the Police but she was unable to do so as the police would not give any information to her in connection with the investigation into the Father due to data privacy regulations.  It was completely within the Father’s power to demonstrate that this case is closed as he alleged; but what he has chosen to produce fell far short of this conclusion.

The Book Collection – Discussion

158.  I refer to the excerpts of the list of titles from the Book Collection above mentioned.  The Father started off with saying in Court that the implication that it is pornography is an absurdity. 

159.  It is the Father’s evidence that he had collected these books for 30 years, at the hearing, he said:

“I funded the collection for 30 years. For the last 10 years I bought them at arms length. They went straight into the collection then they were catalogued … I have never even read the list … The only reason the list exists is because I used to reference it when I bought a new book. I have to check if I already have it in the collection …”

160.  The Mother’s counsel submitted that this answer is contradictory in itself.  I agree.  He must have been clearly aware of what was in the collection as he has to cross check the list when he purchased new books. 

161.  New evidence also arose when asked where he acquired these books.  First, he claimed it was E-bay or Amazon, then he said he had a dealer in the UK to buy books on his behalf, and then he also added that he purchased them in bulk from estates when the owner passed away, and therefore claimed “it was wrong to paint a picture that I selected each and every title”.  These latter answers were not in his affidavits, and sounded like an attempt to distance himself from the knowledge and details of these book titles.

162.  Moving on to the explicit book covers put in evidence by the Mother’s solicitors.  Granted that these are book covers that they downloaded from the internet, the Father in his Affidavit had this to say:

“The Petitioner has exhibited certain book overs which purportedly come from my collection, but I deny the same. My collection of books did not record cover images.”

In the same Affidavit, the Father then uttered the following contradictory statements:

“I also confirm that I have not read any of the Books.”

….

“To be clear the books in relation to incest or children’s sexuality have no photographs in them and are merely low-grade literature and nearly always of that vintage, just writing.’

163.  I concur with the submission of the Mother’s Counsel that if he had not read any of the books, how would he know they are mere low-grade literature with no photographs, and that they have no cover images.  Under cross examination, Father then claimed that “these books may have the same titles but different editions would have different covers”; on further questions from the Mother’s counsel, he said he took no photos of these covers. 

164.  As mentioned above, the Father claimed that the Mother is fully aware of his collection, and his counsel stated that the Mother has underplayed her knowledge of this Book Collection.  On this I note that the Father had actually said the Mother did not spend much time at L House where the Book Collection was kept prior to their move to Hong Kong:

“… Contrary to the Petitioner’s allegation that she lived at L House, she merely visited me there from time to time, but we have never cohabitated at L House.”

Therefore, given that she did not spent much time there, and that the room with the Book Collection could sometimes be locked, I therefore accept the Mother’s evidence that she did not know the extent and details of the book titles until the time she re-looked at the email with the list in July 2019.

165.  The Father then gave contradictory evidence in his affidavit saying that the Mother was not concerned with nor disapproved of his collection, but in court said that he got rid of the books in late 2018 to save his marriage.  The Mother was not aware that he got rid of the books until after the divorce proceedings have commenced, so it is difficult to see how he intended to save his marriage when he did not tell his wife that he had got rid of the very thing that caused her concerns and which in part led to the divorce. 

166.  With regard to the whereabouts of the Book Collection, there was yet further contradictory evidence from the Father.  In his affidavit of 18 November 2020, he mentioned that the Book Collection was sold to his son, and “had been disposed of in late 2018”, but then said in Court that it was January 2019.   When the Mother’s solicitors wrote to the Father’s solicitors after the initial discovery of the list of titles in July 2019, there was no mention by him that the books were disposed in late 2018 or early 2019.  Nor was it ever mentioned in his affidavit dated 17 April 2020 when he talked about his Book Collection there.  In giving evidence in Court, he said he did not know where the Book Collection was as he had given them to his son; and then under cross examination, he said he sold it to his son for £1.  I find it hard to believe that the Father made no effort to ascertain where this collection has gone to as he must know that his possession of these books is something that would be canvassed at this trial.  Did the son keep it for himself, did he on-sell it, and is there any evidence to this effect?  All the Father said was: “I don’t know, I gave them to my son and I have told him I don’t want to know where they are.” 

167.  With regard to this Book Collection, I concur with the Mother’s submission in the following regard:

“The Father has put forward different explanation by which he seeks to persuade the Court that there is an innocent explanation for his possession of such offensive literature, none of them convincing.”

168.  Indeed, Father’s counsel has called it his “academic collection”, and in his affidavit, he said:

“I also confirmed that I have not read any of the books. My interest is simply in collecting them, as I merely appreciate the artistic and academic value of the collection of such books, which were printed in an extremely small amount but do carry great implication upon the social political legal and anthropological development on the topic of sexology since the 19^th century.

He then said it was intended to be his legacy.  He spoke of making a donation of this collection, so there could be his name on a brass plaque with this donation.  He said that the Vatican and the British Library have similar collections, and he could contribute to people doing research on this subject.  But at the end, he told this Court that he gave it to his son, and maybe for £1.

169.  I find none of these explanation credible.  He has unsuccessfully tried to distance himself from this Book Collection, and gave no plausible explanation or elaboration to support this as an academic collection as he claimed, nor why he chose to collect books with contents of this nature in particular if he does not have an interest in the subject matter.

170.  Furthermore, I am of the opinion that the Father had tried to divert attention by stating the following in his affidavit:

“… there are a total of nearly 20,000 titles in the collection. Due to the size of it, I had left the whole of the collection in the UK to the care of my son … before the Petitioner and I decided to relocate from the UK to Hong Kong in November 2011. The Children are therefore unaware of the collection and they have had no opportunity ever since their birth to look at the books.

And also in his Answer to Questionnaire:

“… the Respondent left the Collection in the UK in the care of [his] personal assistant and archivist of whom the Petitioner is fully aware of. Throughout the parties’ relationship which started in 2011 and their subsequent marriage, the Petitioner was fully aware that the Respondent had never intended to bring the Collection to Hong Kong nor was any of the items in fact brought to Hong Kong.”

171.  It is not about where the books are or even if the Daughters can see them.  It is his interest in the subject matter that is the cause for concern.   

172.  Mother’s counsel has in her closing submission summarized her position as follows:

“The simple explanation for the Father having such a collection of books is that he has purchased them and possesses them because he quite clearly has an interest in the content including child pornography and incest. This makes him a risk to his young daughters and as such his access should be supervised.”

Fact Finding Hearing

173.  Just prior to the present hearing, the Father’s solicitors have asked for a fact-finding hearing regarding the allegations Mother made against the Father.  This arose as a result of what they said was revealed in the ISIR which they claimed to be non-disclosure by the Mother.  They first asked that Ms T be cross examined, which DDJ S Wong refused for lack of video link facilities, they then asked for a fact-finding hearing and adjournment of the trial; afterwards when the video link was available and a date was given for Ms T to give evidence remotely, the Judge refused the application for a fact-finding hearing.  The Father’s solicitors sought leave to appeal against this decision and DDJ S Wong refused leave in her decision on 12 January 2021.  This issue was not taken up any further by the Father, although his counsel brought this up again in her closing submission.

174.  DDJ S Wong was of the view that this fact-finding hearing was a delaying tactic by the Father, and said this in her decision:

“37. … In my view, to adjourn the trial on relocation to give way to a fact-finding hearing as to M’s allegation is not necessary because: -

(i) The question of care and control is never in dispute. Parties only argue joint custody or sole custody to M. M’s allegation of sexual abuse and child pornography would not affect the final decision. As for staying and/or supervised access, counsel for both parties could address the Court at the trial on relocation and cross-examine witnesses in this regard.

(ii) If F thinks otherwise, he should have made the application earlier in order not to delay the trial on relocation.

(iii) In any event, a trial on an issue concerning the children is also a fact-finding exercise. If M’s allegations against F are relevant to the relocation issue, I am sure the counsel representing M and F will draw the trial judge’s attention to them.

175.  In this trial, the issue of the Mother’s allegations will affect my decision on whether the Father should have supervised access to the Daughters, I need to consider, on a balance of probabilities, if the Father may pose a possible risk to them based on the evidence before me.

176.  Father’s counsel quoted the case of CCL v SW FCMC 10564/2009, where the decision of HHJ Bruno Chan “set out the legal principles where a parent had made allegations against the other parent, concluding that:

49.   the burden is on the Mother to prove the probabilities that those abused sexual and physical abuses did occur, and given the gravity of the allegations, such evidence should be clear and cogent, and if I am not satisfied that the alleged abuses did occur, then it is for her to show that there is a likelihood, on the basis of such facts that are proved, that K will suffer such risks in the future if she it to return to the custody care and control of her father.”

177.  I would distinguish this case from the above decision by first recognizing that in the present case, Mother never alleged that sexual abuse has taken place.  Therefore, this is not a matter where I can assess the possibility of future risks based on an alleged but unproved abuse in the past.  Furthermore, the learned Judge found against the mother’s allegations based on his assessment of the mother’s suspected motives to obtain the child’s custody so as to gain advantage in her ancillary relief claim; and also on multiple social investigation and psychological reports in that case which indicated that the child therein was under immense conflicting parental loyalty pressure and that she might have been coached when she complained about the abuses.

178.  Coming back to this present case.  

179.  The undisputed incident of the Police search in August 2018 looking for child pornography has given me concern; as this event, which was more likely than not based on a police search warrant, could not have happened for no reasons.  Acknowledging that there are data protection rules in place, it is clear to me that the Father is the only person who can investigate the status of this investigation.  While the Father’s counsel can argue that he has done so with the letter from C Lawyers to prove that the case is now closed, but as I have said above, the said letter about their investigation still left a lot of questions unanswered.  I also placed weight on the fact that the Father was asked to inform the court what searches were done by C Lawyers and he had failed to produce this information.  I am therefore not satisfied that the police investigation on the Father has fully closed as he claimed. 

180.  There is no dispute that the Book Collection exists.  Even the Father acknowledged that there are almost 20,000 books on sexology in his collection. The Father’s evidence regarding his Book Collection is contradictory, and different versions and additional evidence were brought up at trial.  Looking at the titles of the books in the Book Collection, while I cannot say with certainty that this is evidential of a predisposition to undesirable behaviours with children, but with his vast collection of books on this subject, it is certainly an indication of his interests in the subject matter.  At the trial, he said:

“It wasn’t as if I have an interest in the subject … what you are trying to imply is that I collect books in that specific subject … My interest is academic ….”

I do not believe him when he said that he has no interest in the subject matter.  I am also of the view that his claim that this was a mere academic collection has not been substantiated. I have not heard in any way what this means, how this collection serves his academic interests, and / or how he made use of them for academic reasons. Despite what he said about legacy and donation, in the end, he told the Court he gave it away for £1.

181.  I find the Father’s evidence, with regard to at least these two events to be evasive to say the least and I do not find him to be credible generally.  I have also based this assessment on his demeanour when he gave evidence in Court.

182.  I am of the view that the Mother has acted out of an abundance of caution for the safety and welfare of the Daughters.  I can appreciate that on the accumulation of factors that were before her and from her perspective, that she felt the need to ensure their safety.  Her case was clear from the beginning, it was not that she alleged that the Daughters have been sexually molested and abused, but she felt that they are at risk.  I accept that she has genuine and legitimately based concerns for the safety and well-being of the Daughters.   

183.  I look at these incidents, including the Bot Bot incident and the Clubhouse incident, on a cumulative basis and assess this matter based on balance of probabilities as to risk to the Daughters; in this exercise, the most important guiding principle is what is in their best interest.  I conclude that on the standard of proof required of me, I have cause to be concerned that there is a possibility of risk to the Daughters if their access is not supervised.  The Court has a duty to protect vulnerable children from harm, and a risk of this nature is unacceptable.  Importantly, they are still very young, and they are not at an age where they are able to assess or to speak up on whether something that happens to them is causing them harm. 

184.  In the Mother’s counsel opening submission, she made reference to the case of GCOL v IHL FCMC 10850/2006 [2017] HKCU 2611, in this decision by HHJ Melloy made in August 2017, she had to decide on whether supervision should continue for the child of the family in that case, who was then 12.  The paramount consideration for the best interest of a minor child remains the guiding principle.  In that case, the Judge decided that the child, who had supervised access since age 3, should continue to have supervised access for 2 more years before further review.

185.  In my view, supervised access is appropriate and necessary in this case and I order that it should continue until further order.  This will not prevent the Father from re-visiting this arrangement when the Daughters are older.  In my view, this will not negatively affect the relationship between the Father and the Daughters if the parties are sensible, and the parents should remind themselves that they should put their children’s interest before their own emotions and history. 

Access arrangement before and after the Relocation

186.  Prior to the Mother’s actual departure for relocation, the Father’s access should be continued to be supervised by a professional nanny.  The Mother is directed not to attend the access except for the purpose of dropping off and picking up the Daughters. I shall also order that the professional nanny should be engaged by the Mother to give her comfort, but the costs to be shared between the parties.   The nanny should be informed of the parameters of the access including time frame, location and any conditions attached.  

187.  After the relocation, the weekly virtual access shall continue.  The Father has not proposed timing for these virtual access in his proposals, and he has not challenged the Mother’s offer.  I shall therefore adopt the Mother’s proposals in this regard.    

188.  If and when the Father returns to the UK, Father’s day access shall be supervised by a professional nanny, the access is not to be attended by the Mother except for dropping off or picking up the Daughters, the professional nanny is to be engaged by the Mother, and the costs of the nanny to be shared between the parties.  Again, the nanny should be informed of the parameters of the access including time frame, location and any conditions attached.

Pandemic and Timing

189.  As at the writing of this judgment, the pandemic situation is easing off in the UK. If this situation persists, then Mother and the Daughters should be able to travel.  I therefore direct that they should relocate to the UK on or after the 25 August 2021, and in any event, no later than 31 August 2021.  The reason being that:

  i.  The Father would have the coming months to spend with the Daughters over the summer;

  ii.  The Daughters would then be able to return to the UK to commence their school term in September 2021.

Costs

190.  The costs incurred for these proceedings is staggering considering that the suit was not contested, there were no hearing on the Mother’s MPS application, the ancillary relief discussion has not effectively started, and that this Relocation Application only commenced in January 2020.  At the time of trial, the Form Hs revealed that the Mother has spent close to HK$4 Million, and the Father more than $10 Million.  

191.  There are twelve bundles of exhibits and ten bundles of correspondences for this trial.  The scale in which this case has fanned out is clearly disproportionate to the issues, and the costs spent thereon unjustifiably exorbitant.   

192.  One could not help but think that these resources would have been better deployed for the benefit of the Daughters.

193.  Given this is a children’s matter and that neither parties have succeeded in all of their claims, I will make no order as to costs.

Orders

194.  Leave be given for the children of the family namely A, a girl born in October 2015, and O, a girl born in July 2018 to be removed out of the jurisdiction of Hong Kong on a permanent basis in order to relocate to the UK, with effect from the 25 August 2021, and in any event, not later than 31 August 2021.

195.  The Petitioner and the Respondent is granted Joint Custody of A and O.

196.  The Petitioner shall have care and control of A and O.

Supervised Access prior to Relocation

197.  Previous Order regarding supervised access shall continue until the Mother and the Daughters’ relocation; with liberty to apply. Save and except that during this period, Mother shall not attend the supervised access except for the purpose of dropping off and picking up the Daughters.   The supervision shall be by an independent nanny appointed by the Mother, with the cost to be borne by both Father and Mother. The nanny shall be informed of the parameters of the access including timing, location, and any conditions attached.

Access after Relocation

198.  The Father shall have the following video telephone access after the Petitioner and the Daughters’ Relocation

i.  The Father shall have video telephone access calls at 7:30am UK time every Monday, Wednesday and Friday.

ii.  The Father shall have additional video telephone access calls on his birthday, Father’s Day, Christmas Day and birthdays of the Daughters (if these do not coincide with his access days)

199.  If the Father travels to the UK and subject to at least 4 weeks’ notice in advance to Mother:

  i.  If his trip is up to two weeks in duration, the Father shall have supervised and defined day access for 5 times out of every 7 days, at such time and location to be agreed between the parties, and for at least 1.5 hours per time;

  ii.  If his trip is more than two weeks in duration, the Father shall have supervised and defined day access for 5 times out of every 7 days for the first two weeks, and then 3 times out of every 7 days for the remainder of the time, at such time and location to be agreed between the parties, and for at least 1.5 hours per time.  

200.  All access to the Daughters shall be supervised access by a professional nanny.  The cost of such nanny to be equally shared between the parties.  The nanny shall be informed of the parameters of the access including timing, location, and any conditions attached.

201.  The Mother shall not attend the Father’s supervised access so long as there is a professional nanny present; except for the purpose of dropping off and picking up the Daughters for access time.

202.  Liberty to apply on an urgent basis with respect to the implementation of this order.

203.  There shall be no order as to costs, which will be an order nisi, to be made absolute 14 days from the date of this Order, unless an application is made to vary the same.

Direction

204.  It is directed that the Petitioner do obtain a mirror order from the appropriate court in the UK with respect to the terms of this order, such order to be obtained prior to, or as soon as practicable after, her relocation with the Daughters to the UK.