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Thinking of relocating with your Child but your Spouse does not Agree?

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Jaerey Velasco, a Partner at Payne Clermont Velasco Solicitors, outlines what you need to know

Since the start of the pandemic in 2020, it has been inevitable that some families would have to relocate out of Hong Kong, to return to their home country for security, employment, or other reasons. For expat families in Hong Kong, relocation with the children by one parent can be the most challenging part of divorce proceedings. Here is a walk-through of the law on relocation applications of children in Hong Kong.

Generally, every child of the family falls under the jurisdiction of the Hong Kong Courts at the start of divorce proceedings. At this time, it is usual for the Court to make Orders on the arrangements regarding children, including directions barring their removal from Hong Kong without permission from the Court. Thus, one parent must seek the consent of the other parent or file an application with the Court if he/ she wishes to relocate with the children permanently or temporarily.

What happens if the other parent disagrees to the relocation? The relocating parent needs to file an application to the Family Court setting out his/ her reasons and plans for relocating the children. The opposing parent will have a chance to provide reasons for opposing the relocation application and set out counterarguments. The Court will also ask for a Social Investigation Report wherein a Social Welfare Officer will conduct an interview and assessment of the parties and the children, and provide recommendations on the relocation application. If necessary, a clinical psychologist’s report will also be called for.

The Court may also decide upon a Children’s Dispute Resolution hearing, whereby the Judge acts as a conciliator and assists the parties to reach a settlement of children’s issues, including the relocation application. If there is no agreement reached at the Children’s Dispute Resolution hearing, then there will be a trial where the Court holds a hearing and considers evidence and arguments from both sides, and hands down a judgment.

What does the Court take into account when granting a relocation order? The Hong Kong Court upheld an English decision in Payne v Payne that welfare of the children is paramount when considering the grant of a permanent relocation order. In deciding relocation applications, the Court assesses factors including reasonable proposals and motivation of the parent wishing to relocate; effects on the child of seriously interfering with the life of a custodial parent; and effects on the child from the denial of contact with the absent parent.

The Judges will also go through the “Welfare Checklist” when determining issues relating to children and where their best interest is to be considered.

If you are thinking of relocating out of Hong Kong, it is important that your plan is genuine and not motivated by a desire to exclude the other parent from the child’s life. You need to be able to set out your relocation plan to the other party and the Court by conducting research on the place you are relocating to, i.e. neighbourhood, school, activities for the child. You need to take into account how the other parent who is remaining in Hong Kong can have continuous access and a relationship with the child; and you need to make the child’s welfare your prime concern.

In coming to a decision on a relocation application, the welfare of the children is always the Court’s main concern. Usually, the Court would not hesitate to grant a relocation application if the parent can demonstrate that he/ she has a reasonable proposal for the relocation that is beneficial to the welfare of the children.

Jaerey Velasco is a Partner at Payne Clermont Velasco Solicitors in Sheung Wan. She has considerable experience in advising and representing clients on all aspects of matrimonial and family law. For more information, call 2527 9538 or visit www.payneclermont.com.

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