Are you a divorcee looking to relocate from Hong Kong with your children? Samantha Gershon, Partner in the family and divorce team at Withers, has some timely advice
As soon as divorce proceedings begin in Hong Kong, the children of the family will fall under the jurisdiction of the court. This means that should the father or mother want to relocate with the children, they need each other’s consent. Without the other parent’s consent there is a need to make an application to the Court for leave to remove the children from Hong Kong. Any temporary removal from Hong Kong also requires the other parent’s consent or an Order of the Court.
A temporary removal is normally requested when a parent wants to take the child out of Hong Kong on holiday, to see ailing grandparents or to study abroad. A contested application can arise when the other parent is fearful that the parent making the application does not intend to bring the child back to Hong Kong.
When making its decision, the Court will focus on the best interests of the child. During the pandemic, the Court may not agree to a child leaving Hong Kong temporarily if they need to quarantine in a hotel for 14 days when they return, or if they are going to a country that’s in lockdown or where the COVID-19 numbers are very high.
Even if the parents agree to allow a child to be permanently removed from Hong Kong, there still needs to be an Order of the Court permitting the child to leave. The party leaving must also agree to return the child to Hong Kong if required to do so.
In contested permanent removal applications, like with temporary removal cases, the best interest of the child remains the overriding consideration. The parent applying to leave with the child needs to demonstrate to the Court that they have a proper plan for the child’s future, including future schooling, accommodation and proposed future access arrangements. The Court will then look at the existing care arrangements. For example, if there is shared care from which the child benefits, then it may not be in the child’s best interest to relocate.
During these uncertain times, a parent wishing to leave Hong Kong could be forced to put their relocation plans on hold. They may want to move to a country which has travel restrictions or does not accept non-permanent residents which would affect the access rights of the remaining parent. If it is not possible to fly in and out of Hong Kong with ease, and if quarantine restrictions are in place for the parent, relocation would not be in the best interest of the child since they would be at risk of having no direct contact with one parent for a considerable amount of time.
These are complicated issues and ones that need to be carefully considered by the parents when making the decision to relocate. At Withers, our family specialist lawyers can guide you every step of the way.
Withers, 30/F United Centre, 95 Queensway, Admiralty, 3711 1600, www.withersworldwide.com/en-gb/hong-kong
Samantha Gershon is a Partner in the family and divorce team at Withers. Find more from Samantha at www.withersworldwide.com/en-gb/people/samantha-gershon.