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Every year before long holidays i.e. Christmas, Easter and Summer, family law practitioners would often be busy dealing with their clients’ applications for temporary removal of children out of Hong Kong for their holiday travel. 2020 has been very different.
Due to the COVID-19 outbreak and with the lockdown and travel restrictions around the world, we have not seen the typical “seasonal” element to temporary removal applications as holiday travel is no longer a driving force behind these applications. Whilst children were kept out of schools between February and September 2020 in Hong Kong, parents were eager to either remain in Hong Kong with their children or return to countries they considered safe or close to their families. This resulted in a spike in applications for the temporary removal of children from Hong Kong and return of children to Hong Kong during this period.
The trends of such applications can be summarised as follows:
| February – March 2020 | Outbreak in Mainland China and Hong Kong Upon the escalation of the Covid-19 outbreak in China and suspension of schools in Hong Kong, parents made applications to remove their children out of Hong Kong. Those who had travelled with their children before February 2020 were reluctant to return their children to Hong Kong. |
| April – June 2020 | Outbreak in Europe, UK and US Parents faced difficulties returning with their children to Hong Kong due to the travel restrictions imposed by Hong Kong and many other countries. This resulted in an increase in applications to return the children to Hong Kong, as they fear that there would be further complications on their travel plans if they stayed abroad. |
| July – present | Outbreak in Hong Kong and globally It has become even more difficult for parents who live abroad to have access to their children in Hong Kong. |
With the COVID-19 crisis impacting the world for over 10 months, we have seen significant disruption to childcare and access arrangements especially where a parent living in a different country is forced to be physically separated from his/her child for prolonged periods of time. This gives rise to new arguments over what constitutes the “habitual residence” of the child as the prolonged stay of the child in a foreign country may have the effect of changing his/her habitual residence, especially where the child becomes accustom to the living arrangements in that country, including for instance, attending school in that country.
What is the “habitual residence” of the child?
As stated in paragraph 7.7 of LCYP v JEK (Children: Habitual Residence) [2015] 4 HKLRD 798 (CA), the issue of “habitual residence” is a question of fact, and the question to be asked is whether the residence of a particular person in a particular place acquired the necessary degree of stability to be habitual.
Therefore, whilst it might not have been the parent’s original intention for the child to permanently relocate to a foreign country, it is possible for the child to subsequently acquire a new habitual residence by virtue of his/her connection to that country e.g. living environment, schooling and activities in that country.
The law in Hong Kong on removal of children
Section 3 of the Guardianship of Minors Ordinance, Cap. 13 applies to applications seeking the removal of children:
GENERAL PRINCIPLES
(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;
NP also known as NF v CTF (FCMC 625 / 2011)
Section 3 of the Guardianship of Minors Ordinance was confirmed in paragraph 13 of Her Honour Judge Melloy’s Judgment in NP also known as NF v CTF (FCMC 625 / 2011).
It was further stated in paragraph 14 of her Judgment that:
“In so far as access is concerned, this is generally said to be the right of the child, as opposed to the parent. In other words, the child has the right to see and to have a relationship with both of her parents. I accept, as suggested by Mr Hemens in his closing submission for the mother, that generally speaking a holiday overseas with a parent will be viewed by the court as being in the best interests of a child. This is particularly so when as here, the parents are from different countries and cultures (Thailand and Canada) and where the parent’s partners also come from different parts of the world (United Kingdom and the Philippines). No doubt as time moves on not only will the mother wish to take S to Thailand and the father to take her to Canada (as he has done in the more recent past), but the mother may also wish to take her to the UK with her new husband and family and the father may wish to take her to the Philippines with his partner. Other Asian destinations may also beckon. This is to be expected.”
In this case, the Mother sought leave from the Court to travel with her 3.5 year old daughter to Thailand (the Mother’s home country) for a 7-day holiday, and also for general leave to remove the daughter S to Thailand from time to time for holiday purposes. The Mother had family and friends in Thailand. The father, a Canadian, opposed the Mother’s application on the basis of past incidences of the Mother’s violence and alleged neglect of S.
Notwithstanding the past incidences, the Mother’s application to remove the child for the purposes of the 7-day holiday was granted by HH Judge Melloy, although general leave to remove her to Thailand from time to time was not granted. The court order allowing the Mother to temporarily remove the child was subject to the Mother providing an undertaking to provide a travel itinerary and contact details in advance and to return the daughter to the jurisdiction of Hong Kong on the date specified or when called upon by the Court to do so.
In arriving at her decision, HH Judge Melloy considered the child’s relationship with both parents and held the view that the risk of the child being abducted by the Mother to Thailand was very low:
“She [the child] is happy in the company of both. She also relates well to the other adults in her life and in particular to her parents’ cohabitants. The mother seems more settled and has explained her past behaviour in terms of the huge emotional upheaval that she was experiencing at the time. There have been no recent incidences which might cause the court further concern.”
Re DO and BO [2017] EWHC 858 (Fam)
In this more recent UK case, the Mother, a Chinese national who had recently acquired a British passport, sought permission to take her children (aged 8.5 and 6) on holiday to China for 21 days each year. The Father, a dual UK and Australian national, opposed the application. The Mother’s application was unsuccessful.
In arriving at his decision, Baker J considered the relevant law regarding temporary relocation applications (the leading authority being Re R (A Child) [2013] EWCA Civ 1115) and s.91(14) of the Children Act, and concluded as follows:
- The magnitude of the risk of breach of the order if permission is given – Baker J concluded that there was “moderate” risk (i.e. not an insignificant risk) that the Mother would not return the children to the UK. She had no assets and no job in the UK, and her accommodation there was a 6-month tenancy, and her evidence regarding her assets in China lacked credibility. He reaffirmed that it was the judge dealing with the temporary removal application who was in the best position to carry out this assessment.
- The magnitude of the consequence of breach if it occurs – Baker J considered that the retention of the children in China would have devastating consequences for the children.
- The level of security that may be achieved by building in to the arrangements all of the available safeguards – Baker J noted that China was not a signatory to the Hague Convention and that no bilateral arrangements existed between the UK and China. Further, the evidence showed that the Chinese court would not make a mirror order or otherwise give effect to any English order. Baker J accepted that it would be difficult for the Father to access the court in China.
Recent guidance in England and Wales on Compliance with Family Court Child Arrangements Orders (published on 24 March and revised on 1 April 2020)
This guidance was given by Rt. Hon. Sir Andrew McFarlane when the UK was subject to lockdown and travel restrictions, and stipulated that it is not a must for a child to be moved between his/her parents’ respective residences in accordance with the Child Arrangements Order (CAO). The decision of whether a child is to move between parental homes rests with the parents after making a sensible assessment of the circumstances, including the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other.
Where parents, acting in agreement, exercise their parental responsibility to conclude that the arrangements set out in a CAO should be temporarily varied, they are free to do so. It would be sensible for each parent to record such an agreement in writing to each other.
Where parents do not agree to vary the arrangements set out in a CAO, but one parent is sufficiently concerned that complying with the CAO arrangements would be against current Public Health England/Public Health Wales advice, then that parent may exercise their parental responsibility and vary the arrangement to one that they consider to be safe. If, after the event, the actions of a parent acting on their own in this way are questioned by the other parent in the Family Court, the Family Court is likely to look to see whether each parent acted reasonably and sensibly in the light of the official advice and the Regulations in place at that time, together with any specific evidence relating to the child or family.
Where, either as a result of parental agreement or as a result of one parent on their own varying the arrangements, a child does not get to spend time with the other parent as set down in the CAO, the court will expect alternative arrangements to be made to establish and maintain regular contact between the child and the other parent in accordance with the Regulations, for example remotely – by Face-Time, WhatsApp Video Call, Skype, Zoom or other video connection or, if that is not possible, by telephone.
Future outlook
It is anticipated that until the pandemic alleviates, COVID-19 will continue to be a health and safety consideration of the Court when determining applications for temporary or permanent removal of children from Hong Kong and such applications will continue to rise given the uncertainty surrounding travel restrictions.
*This article was first published by STEP HK in its winter 2020 newsletter
