The Future Of Travel From A Family Law Perspective

(This article was published in the November 2022 Issue of “Britain in Hong Kong – The Future of Travel” magazine)

In Hong Kong, the quarantine rules have drastically eased after almost 3 years of tight restrictions.  In particular, the Hong Kong Government recently removed the hotel quarantine restriction.

With the ease of travel restrictions in Hong Kong, what is the future of travel from a family law perspective and the things you should consider ahead of your holidays? 

Whilst it may be desirable to book flights and pack your bags for a spontaneous trip, it is more complicated when you are divorced or are divorcing and have children to consider.  Prior to leaving Hong Kong with the children, an agreement must be reached with the co-parent. If an agreement is not reached, the parent who wishes to remove the children from the jurisdiction of Hong Kong for the holidays must apply to the Family Court for an order allowing him/her to remove the children from Hong Kong.  Given the delays with the Family Court, it is a good idea to apply as early as possible as it may take two (2) to three (3) months before it will  be decided by the Family Court.

For example, if you are planning a holiday with the children next summer and you are currently in dispute with your spouse about these holidays, you should meet with your solicitor as soon as possible and apply to the Family Court preferably no later than January 2023 to avoid pressure with respect to air tickets and hotel bookings.

The Family Court orders have a deadline for the return of children to Hong Kong.  However, it is preferable to have flexible dates built into the Family Court order so that if there is a delay caused by a flight cancellation or you or your family member has a sudden onset of Covid-19 whilst traveling, provisions will be made in the Family Court order so that the extraneous events which you have no control over, do not cause you to be in breach of the Family Court order and does not result in further court applications being made.   

Ahead of travel, another document you may want to consider is a Deed of Parenting. A Deed of Parenting is a legal document that simply states that you and your spouse are the legal parents of the children.  On a practical level, you can take with you the original birth certificates of the children (instead of a Deed of Parenting) or preferably have your solicitor sign a certified true copy of the birth certificate so you do not have to take the original documents with you whilst traveling.  Whilst a Deed of Parenting is not needed in a “traditional” family, these days families are often made up of same-sex couples where the birth certificates will not assist.  In these circumstances, a Deed of Parenting will be helpful.  A Deed of Parenting can clearly state the legal parents of your children without any question or issue.

This may be important during these travel times when customs and immigration officers are burdened with ever-changing rules for individuals coming in and out of their country. 

Another legal document parents may wish to consider is a Deed of Guardianship.  A Deed of Guardianship sets out guidelines for the caring and well-being of minor children in the event of both parents passing away or temporary unavailability due to unforeseen circumstances such as unexpected quarantine during Covid-19 times, especially if you test positive upon arrival in Hong Kong and are required to quarantine at a designated hotel or quarantine facility.

A Deed of Guardianship is a legal document signed by both parents and two witnesses and sets out specific guidelines regarding the care of your minor children.  A Deed of Guardianship will set out the minor children’s primary caretakers and can also identify temporary guardians until such time the minor children can be in the care of their parents or permanent guardians.

Deed of Guardianships may be especially important to expatriates living in Hong Kong, especially when family members are not in the same jurisdiction.  For many expatriates, having a Deed of Guardianship can provide parents with the peace of mind about the care of their children in emergency situations.

It is important to speak with a solicitor who can assist in the preparation of travel with your children.  Oldham, Li & Nie (“OLN”) has a full-service matrimonial team well-versed on such topics and can provide comprehensive advice. Having the appropriate documents prior to travel is imperative in this post-Covid world and can provide you with peace of mind!