Articles

Permanent relocation of children

Permanent relocation of children

Permanent relocation of children

Friday, 17 July 2015 16:40

By Paul Firmin & Amelia Lo

How does permanent relocation arise?

In recent years, applications for the court’s permission to remove a child permanently overseas has commonly arisen in the following circumstances:

  • The Applicant is in a new relationship (whether married or not) and the new partner lives in another jurisdiction, or has a new job or business relocation.
  • The Applicant wishes to return to his or her native country to be close to their family and friends.
  • The Applicant believes that employment or lifestyle opportunities abroad are better than that in Hong Kong.

When do you need permission?

Under Section 19 of the Matrimonial Proceedings and Property Ordinance, Cap 192 of the Laws of Hong Kong, the court may make such order as it thinks fit for the custody of any child of the family who is under the age of 18. In Hong Kong, when a court makes a custody order, it directs that the child or children cannot be removed from the jurisdiction of Hong Kong without leave of the court. As such, it is imperative for a parent who has been divorced in Hong Kong and has the day to day care of any child or children to seek the consent of the court should he or she wish to relocate abroad with their child or children, by means of an application to the court for leave.

What determines whether you can relocate? 

The English case of Payne and Payne [2001] Fam 473, which draws its origins from the earlier decision of Poel v Poel [1970] 1 WLR 1469 has been consistently applied over the last decade in English cases in which the Applicant is the primary carer. In Hong Kong in the Court of Appeal’s decision in SMM v TWM [2010] 4 HKLRD 37, it was said that Payne establishes that (1) “the welfare of the child is the paramount consideration” and (2) refusing the primary carer's reasonable relocation proposals is likely to impact detrimentally on the welfare of her dependent children. The principles set out in SMM v TWM [2010] 4 HKLRD 37 were followed 2 years later in the Hong Kong case of RK v YS  FCMC 4931/2012

One of the more recent landmark cases on relocation in England and Wales is that of the Court of Appeal in the case of MK v CK [2011] EWCA Civ 793. Lady Justice Black, in considering the authorities on relocation before her, pronounced that it was quite clear that “the only authentic principle - that runs through the entire line of relocation authorities is that the welfare of the child is the court’s paramount consideration. Everything that is considered by the court in reaching its determination is put into the balance with a view to measuring its impact on the child”. She also emphasized the importance of considering all the facts of the individual case, and stated that “even where the case concerns a true primary carer, there is no presumption that the reasonable relocation plans of that carer will be facilitated unless there is some compelling reason to the contrary, nor any similar presumption however it may be expressed”. 

In the English case of TC and JC (Children: Relocation) [2013] EWHC 292, Justice Mostyn stated that the court may ask the following questions as guidance when deciding whether the relocation is in the best interests of the child.

Questions to ask the Applicant

  • Is the application genuinely motivated rather than being caused by a selfish desire to exclude the other party from the child's life?
  • Is the application "realistically founded on practical proposals" that are both well researched and investigated?
  • How would the Applicant, either as a single parent or as new spouse, be affected, if his/her realistic proposal was rejected? 

Questions to ask the Respondent 

  • Is the Respondent's opposition motivated by genuine concern for the child's welfare, or is it driven by some ulterior motive?
  • What is the extent of the detriment to the Respondent and his/her future relationship with the child, if the application were granted?
  • To what extent would the detriment be offset by the extension of the child’s relationships with the Applicant’s family and homeland? 

Is there a presumption in favour of the carer (usually, the mother)?

It used to be said that in determining relocation applications, there was virtually an automatic presumption in favour of the mother as the primary child carer. It may well still be the case, at least from a statistical perspective, that an application for permission to relocate made by the primary child carer is more likely to succeed than not, but it is clear that each case ultimately depends on its own facts and there are no presumptions in favour of one parent over the other.  In 2015, we have successfully obtained the relocation to the United States of a father and his children.