Our Matrimonial & Family law partner Anita Leung was interviewed on issues relating to the relocation of children from divorced families.
Watch the YouTube video in the following link: [Interview with Family Lawyers-Answering the Problem of Single Parent Family Leaving Hong Kong with Children] 🛫 – YouTube
Summary of the Interview
Part I – Custody, Care & Control
When a couple applied for divorce to the Hong Kong Court, the Court would make Orders relating to the children arrangements, including the custody, care and control and access orders. Custody is the legal parental rights and responsibilities borne by the parents of a child. It covers the right of a parent to make important decisions for a child, like education decisions, medical decisions, choices of extra-curricular activities, choice of religion and choice of school, etc. Care and control is the day-to-day care of the child.
In some overseas countries, the terms “custody” and “care and control” have now been dispensed with and replaced by the term of “parental responsibility” to emphasize the obligations of the parents towards the children instead of their parental rights. Hong Kong has yet to implement the concept of “parent responsibility”.
Part II – Removal of Children from Hong Kong
If you have been granted the sole custody and/or sole care and control, you still cannot remove the child from Hong Kong without the other parent’s consent or the Hong Kong Court’s approval.
In principle, if a child is in Hong Kong or his/her habitual residence is Hong Kong, the Hong Kong Court would have jurisdiction over such child. If a child has been removed from Hong Kong by the other parent unilaterally, a parent has been sharing the care or having access with the child may apply to the Hong Kong Court for the immediate return of the child to Hong Kong. If the child is still in Hong Kong, the Court may still consider granting an injunction order restricting the child to be removed from Hong Kong upon either parent’s application when there is strong evidence proving the high risk of the child being removed unilaterally. A parent does not need to wait for the granting of the care and control or access order before he/she can apply for the said immediate return or non-removal order. In some cases, a parent can apply for such order even if the divorce proceedings have not been concluded or commenced.
It is also the general practice that when the custody order is made at the time of divorce, the Court would give a direction on restricting the removal of a child from the jurisdiction of Hong Kong without the leave of the Court, unless (i) the parent removing the child files a general undertaking to return the child to Hong Kong upon the conclusion of the approved temporary removal or at any time ordered by the Court and (ii) the other parent consents in writing to the removal.
Hence, a parent who has sole custody and/or sole care and control does not mean he/she can permanently remove the children from Hong Kong unilaterally, and consent from the other parent or leave allowing the relocation from the Hong Kong Court is still needed.
For unmarried couples, a parent who has been sharing the care or having access with the child, he/she may also apply for the immediate return or non-removal order, if the removal of the child would deprive of his/her access rights. If you need such assistance for the immediate return of your child or the restriction of your child being removed, you may seek detailed legal advice on your entitlement under the care and access arrangements of your particular case.
Part III – Relocation Application
If both parents consent to the relocation of the child, they can apply for leave by filing a Consent Summons with the Hong Kong Court. If the Court does not have any queries on the application, it usually takes 2 to 3 weeks’ time for the Court to approve the Consent Summons subject to the Court’s diary. However, if the parents have not commenced divorce proceedings or other proceedings relating to the child arrangements prior to the relocation application, it will take longer time for the Court to deal with all these applications.
If the other parent does not consent to the removal, you will have to apply to the Hong Kong Court for a relocation Order. Upon receipt of such application, the Court will determine whether it is in the child’s best interest to permanently relocate to another country and whether leave shall then be granted. The Court will first consider the application from the applicant’s perspective by reviewing whether the applicant’s proposal is realistic, like well-researched and investigated. It will also examine whether such application is genuine, i.e. not motivated by the selfish desire of the applicant to exclude the other parent from the child’s life. If the applicant passes these tests, the Court will then look at the matter from the objected parent’s perspective, like whether the objection is motivated by genuine concern for the future of the child and the detriment on the relationship between the objected parent and the child caused by the relocation. The Court will usually call for the submission of an international social investigation report to assist it to evaluate the relocation proposal. In any event, the Court will have to take the child’s welfare as the paramount consideration when deciding to allow or reject the relocation application.
If you have lost the contact of the other parent or the other parent does not respond to your request for the relocation, you will have to make an application to the Court for the relocation order. For the loss of contact, you will have to prove to the Court that you have already exhausted all your means to contact the other parent. If you have the other parent’s contact, but he/she does not respond to you on the relocation, you will have to prove to the Court that you have properly served the application documents on the other parent and inform him/her about the hearing of such application.
Part IV – Variation of Custody
If you intend to vary the former custody order, it can be done at the same time with the relocation application. For cases with both parents’ consent, the application for the variation of custody can be done through the same Consent Summons for relocation to be filed with the Court. If the other parent does not consent, you can also apply for the variation of custody at the same time when making the application to the Court for the relocation. In such case, the Court will usually call for a Social Investigation Report recommending whether it is in the child’s best interests to vary the custody arrangements for its consideration.
Given that the Hong Kong Court has retained wide discretion and will take into account the facts of each case in deciding applications relating to the child arrangements, if you have any queries on your particular case, it is recommended that you shall seek for separate legal advice in respect of your own case.
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Written by: Anita Leung, Partner
Contributing Advisors
