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Joanne Brown, Partner, Head of Family at Tanner De Witt, outlines legal issues parents need to be aware of

The world is exercising its third pandemic year. As we continue to deal with uncertainty with travel bans, restrictions and quarantine, the Family law team at Tanner De Witt has seen an increase in enquiries from parents wishing to permanently relocate from Hong Kong with their children. The motivations to permanently relocate are myriad and include loss of employment or a desire to be closer to family members. Where parents cannot agree the terms of a relocation, they must take out a relocation application with the Family Court.

Even before the pandemic, a relocation application is a difficult one. A Judge must carefully balance factors such as whether the relocation application is genuinely made, whether the relocation proposal is realistic and well-researched, whether the other parent’s opposition is genuine and how access between the child and the parent ‘left behind’ will be maintained. Having considered all these factors, the Judge must decide whether or not the relocation is in the child’s best interests. Where a child is of sufficient maturity (generally from 10 to 11 years old), their wishes will also be given strong weight.

In 2020 and 2021, there were a number of relocation cases in which judgment was given which granted a relocation despite COVID-19 and the uncertainties surrounding travel. Specifically, a recent decision from the Family Court in Hong Kong addressed concerns about how the pandemic and the resulting difficulties with the global economy should affect how a Judge considers relocation applications. The Court demonstrated that it will not let the pandemic be a sufficient reason to delay or prevent relocations where applications are genuinely made and well-founded.


What can a parent do if they wish to relocate with their child, but there is no consent from the other parent?

Consider why and when you wish to move. The Court is generally more inclined to grant an order for permanent removal if the requesting parent is moving back to their home country and/ or the parent can show that they have a good support system in their home country or new location.

Consider whether it is the right time to move. Is the intention to move at the end of the academic year or the end of an employment contract or lease expiry? The court will take such factors in to account. Have a realistic, well-researched and organised plan. Be prepared to inform the Court where you will live, what school the children will attend and what the childcare arrangements are. The Court will also consider earning potential in the target country and travel arrangements.

Have an open and honest discussion with the other parent, including whether mediation is an appropriate means for a resolution. If the other parent does not agree, the process of applying to the Family Court for a relocation order is lengthy and costly. It may take up to 12 months before the application is before a Judge and a trial on the matter can span days or even months.

It is also worth noting that a recent change in policy on extensions of stay by the Immigration Department is now permitting applications to be made by applicants who are unable to return to Hong Kong before the expiry of their employment or dependant visas. To be eligible, the applicant must have a visa that is expiring within the next four weeks or have expired for not more than 12 months. The caveat is that the applicant must return to Hong Kong within six months of the approval of the application.

Tanner De Witt was established in 1999 and now has a team of over 100, including more than 50 Hong Kong lawyers. The firm’s family team can talk you through the legal issues surrounding relocation with children. For more information, visit www.tannerdewitt.com.

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