International relocation of children in Hong Kong: overview
A Q&A guide to international relocation of children in Hong Kong.
This Q&A gives a high level overview of matters relating to rights and responsibilities of parents, right to remove, procedure for relocation, dispute resolution in relocation matters, right to appeal, as well as child abduction.
This Q&A is part of the global guide to international child relocation law. For a full list of jurisdictional Q&As visit www.practicallaw.com/relocation-guide. To compare answers across multiple jurisdictions, visit the International Relocation country Q&A tool.
For an introduction to the guide, see the foreword to the International Relocation of Children Global Guide by Mr Justice Stephen Cobb.
Rights and responsibilities of parents
Legal responsibility for upbringing
If a child is legitimate (that is, born to married parents), his/her parents enjoy the same rights and authority. These rights and authority are equal and can be exercised by either parent without the other. Both parents have legal responsibility for their child's upbringing.
If a child is illegitimate (that is, born out of wedlock), the following applies (section 3, Guardianship of Minors Ordinance (Chapter 13)):
The child's mother has the same rights and authority as she would have if the child were legitimate.
The child's father will only have rights and authority over the child (if any) ordered by a court on an application brought by the father.
If a man is registered as the father of the child on the child's birth certificate, he is presumed to be the father of the child (section 5, Parent and Child Ordinance (Chapter 429)).
Rights and responsibilities post-separation
Following separation, the care of children can vest solely or mainly with one parent. Alternatively, care can be shared, depending on what has been agreed by the parties or ordered by a court.
Custody and access
The concepts of sole custody, joint custody and care and control are not defined in any Hong Kong legislation. However, Hartmann JA (as he was then) provided a general explanation of these concepts in PD in KWW  HKFLR 184. The Honourable Judge said that a convenient way of understanding the concepts of "custody" and "care and control" was to compare the nature of the decision-making that is required to put them into practice:
A parent vested with custody has the responsibility of acting as the child's legal representative. Decisions made by a custodial parent are those of real consequence in safeguarding and promoting the child's health, development and general welfare. This includes making decisions relating to:
whether or not the child should undergo a medical operation;
what religion the child should adhere to;
what school the child should attend; and
what extracurricular activities the child should pursue (for example, learning a musical instrument or being coached in a sport).
In contrast to the above, decisions made by a parent who has (at any time) care and control of the child are of a more mundane, day-to-day nature; these are decisions of only passing consequence in themselves but which are cumulatively of importance in moulding the character of the child. These include a host of decisions that arise out of the fact that the parent has physical control of the child and the responsibility of attending to the child's immediate care, including decisions relating to:
what the child will wear that day;
what the child may watch on television;
when the child will do homework; and
when the child will go to bed.
This also includes the authority to impose appropriate discipline (Paragraph 32).
A non-custodial parent has the right to be consulted in respect of all matters of consequence that relate to the child's upbringing. While the right to be consulted does not include a power of veto, it is nevertheless a substantial right. It is not merely a right to be informed: it is a right to be able to confer on the matter in issue, to give advice and to have that advice considered (Paragraph 38).
An order of sole custody does no more than add a qualification to the otherwise joint endeavour of both parents in raising their child, that qualification being that the final decision will rest with one parent (Paragraph 40).
Where a court awards care and control to one parent but rights of access to the other, the court is effectively awarding a form of shared care and control. This is because, when a parent exercises rights of access, especially staying access, that parent assumes care and control of the child for the time that the child is in that parent's physical custody. Rights of access, it is to be remembered, are given in the interests of the child to ensure continued bonding between parent and child (Paragraph 43).
In November 2015, proposals were made to change the current law on custody (see Question 22).
The following orders are available from the court to determine/regulate a child's living/care arrangements:
Joint/shared care and control.
Sole care and control.
See also above, Custody and access.
In the case of SKP v Y,ITT [FCMC 17772/2011 dated 9 November 2011, unreported], HHJ Melloy looked at what the different terminology used in relation to children's orders might mean:
"Joint care and control" denotes a situation where the parties are sharing the day-to-day practicalities of raising the child. Joint care and control is usually used to describe the situation where the child is spending significant periods of time with both parents in each of their homes, but not necessarily on a 50:50 basis. The time shared is likely to be more significant than in a standard custody/access-type order and probably means the child is spending at least 35% of this time based with each of his parents. One would expect that both parents are involved in the schooling and extracurricular activity schedule and it normally denotes a high level of co-operation between the parents. Consequently, one would normally expect an order for joint custody and joint care and control to be made by consent. In the language of the social scientists, an order for joint custody and joint care and control would probably be reflective of a co-operative co-parenting scenario (Paragraph 21).
"Shared care" is an alternative to joint care and control, which has developed over time (for example, through the cases of TAC v VDC FCMC 16497 2010; H v H (unreported, 6 September 2002 CACV 42 2002; SEB v ZX (custody)  HKFLR 165; RWS v KCC, FCMC 9661 2010 unreported). In these cases, the court (for a variety of reasons) felt appropriate for the ultimate decision making power to vest in only one parent, and therefore orders were made for sole custody. However, in these cases the court was anxious to ensure that the child involved should continue to spend significant amounts of time with both parents in a way that was more reminiscent of a joint care and control order. In order to recognise this, and the fact that the non-custodial parent continues to have a great deal of practical control in the child's day to day life, the phrase "shared care" was coined. In social science terms this is perhaps more reflective of a parallel parenting regime (where there is a very high level of conflict between the parents which makes co-operative co-parenting virtually impossible, but where it is in the child's best interests to spend significant periods of time with both parents). In this type of arrangement, it would be normal to set out very clearly how the child's time is to be split between both parents. There is no order for access per se (Paragraph 22).
Relocation/right to remove
Relocation disputes tend to arise following the breakdown of the relationship between the parents of the child. The most common reasons for parents seeking to relocate include:
A parent wishing to return to his/her home abroad.
A parent being assigned to work abroad.
A parent having to travel abroad for job opportunities, having lost his/her local employment.
A parent being in a new relationship and the new partner lives or needs to move abroad.
General principles and guidance
The Hong Kong Court of Appeal in SMM v TWM CACV 209/2009 reaffirmed that the principles laid down in Payne v Payne  Fam 473, an English Court of Appeal case, should be applied and adopted in Hong Kong. Therefore the two propositions applied by the Hong Kong court are:
First, the welfare of the child is the paramount consideration.
Second, refusing the primary carer's reasonable proposals for relocation is likely to impact detrimentally on the welfare of the child.
Hong Kong courts apply the principles set out in Payne v Payne  Fam 473 (see Question 7).
The application for removal should be approached as follows:
First, the following two questions must be asked:
is the removing parent's application genuine in the sense that it is not motivated by some selfish desire to exclude the other parent from the child's life?;
is the removing parent's application realistic (that is, founded on practical proposals both well researched and investigated)?
If the application fails either of these tests, the application will be refused.
If the application passes the first test, there must be a careful appraisal of the other parent's opposition, for example:
is it motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive?;
what would be the extent of the detriment to the other parent and his/her future relationship with the child were the application granted? To what extent would that be offset by extension of the child's relationships with the removing parent's family and homeland?
The third question should then be: what would be the impact on the removing parent (either as the single parent or as a new spouse) of a refusal of his/her realistic proposal?
The outcome of the second and third appraisals must then be brought into an overriding review of the child's welfare as the paramount consideration directed by the statutory checklist insofar as appropriate.
Procedure for relocation
When a court in Hong Kong makes a custody order, it also directs that the child or children cannot be removed from Hong Kong without either:
Leave of the court.
Written consent of the other parent.
Either parent can serve the order on the Director of Immigration to restrain the child from being removed from Hong Kong.
Either parent can also request the Immigration Department of Hong Kong not to issue passports allowing a child to go abroad without that parent’s knowledge.
If a parent intends to remove the child of the family before a custody order is made, the other parent can make an urgent application to the family court for an injunction to prevent the child from being removed from Hong Kong. This injunction order is then served on the Director of Immigration to prevent the child being removed.
Alternative dispute resolution (ADR)
Mediation can be used to help resolve relocation disputes in Hong Kong. Hong Kong has recently seen the use of Child Inclusive Mediation and Child Focused Mediation to help resolve relocation and other child disputes.
In late 2012, the Children’s Dispute Resolution process was introduced in the Family Court in Hong Kong to support and assist parents to reach agreements with regard to their children in a less adversarial environment. It has been used to resolve relocation disputes.
There are no particular statistics as to the effectiveness of any of the above methods.
Factors in relocation cases
The court will give due consideration to the wishes of the child if, having regard to the age and understanding of the child and to the circumstances of the case it is practicable for the court to do so. The child's wishes can be ascertained/presented through either:
A social investigation report.
Expert child psychologist report.
The judge meeting the child.
Offers of security
Rights of appeal
A parent that is dissatisfied with the decision made by a court in a relocation case has a right to appeal. To appeal the decision, a parent would first require leave from the court of first instance/family court (at district court) level. If leave is not granted by the court of first instance/family court, the parent can apply to the Court of Appeal for leave to appeal. Leave to appeal will not be granted unless the court is satisfied that either:
The appeal has a reasonable prospect of success.
There is some other reason in the interests of justice why the appeal should be heard.
Where the appeal is an appeal against the exercise of discretion of the judge, it is only where the decision exceeds the generous ambit within which reasonable disagreement is possible and is in fact plainly wrong, that an appeal court is entitled to interfere.
Overview/domestic and international law
When a court in Hong Kong makes a custody order, it also directs that the child or children cannot be removed from Hong Kong without either:
Leave of the court.
The written consent of the other parent.
A parent who removes a child from the jurisdiction of Hong Kong without the consent of the other parent or permission from the court breaches the other parent's custodial rights.
If the jurisdiction to which the child has been removed is a signatory to HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention) (to which Hong Kong is a signatory, see Question 19), the abducting parent is likely to face proceedings for the return of the child.
The defences that can be raised by a parent are those contained in Article 13 of HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention). These are:
The left behind parent was not actually exercising the custody rights at the time of removal or retention of the child, or had consented to or subsequently acquiesced in the removal or retention.
There is a grave risk that the return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
In November 2015, proposals were made to change the current law on custody. These are contained in a draft Children Proceedings (Parental Responsibility) Bill. The proposed changes include (among others):
Replacing the concept of "guardianship" with the concept of "parental responsibility" to redefine the parent-child relationship in law.
Introducing various statutory lists covering:
parental responsibility (encompassing both responsibilities and rights); and
major decisions concerning the child's upbringing that would require express consent of or notification to the other parent.
Introducing a range of new court orders to replace the existing custody and access orders.
Consolidating the following into one single Ordinance:
the existing substantive provisions dealing with disputes relating to children, arrangements on divorce, guardianship, disputes with third parties, or disputes between parents without accompanying divorce proceedings; and
the new legislative provisions resulting from the recommendations of the Report on Child Custody and Access.
There are no other current developments affecting the law or practice in relocation or abduction cases.
Hong Kong E-Legislation
Description. This has replaced the Bilingual Laws Information System (“BLIS”). Up to date copies of verified legislation with legal status conferred under the Legislation Publication Ordinance (Cap 614) can be accessed.
Description. This is an official government website, updated and maintained by the judiciary of Hong Kong. It contains, among other things, the daily cause lists of the various courts in Hong Kong, from the Court of Final Appeal to the Magistracies and specialist Courts and Tribunals, judgments, an e-hearing date enquiry service and various other information about the courts, its services, publications and legal references.
Catherine Por, Partner
Stevenson, Wong & Co
Professional qualifications. Hong Kong, Solicitor, 1991; England and Wales, Solicitor, 1983; Hong Kong, Accredited Mediator; Hong Kong, Notary Public; Hong Kong, Arbitrator
Areas of practice. Family law and private client practice.
Non-professional qualifications. BSc Economics, London School of Economics.
Languages. English, Cantonese and Mandarin
Publications. Volumes 1, 2 and 3 of Family Law (Jurisdictional comparisons).