Many clients, when dealing with divorce, have questions on removal of the Children of Family out of jurisdiction of Hong Kong. Removing children out of Hong Kong might have the effect of actually depriving the other parties’s access to the Child, and also might acutally depriving the Hong Kong court’s jurisdiciton to exercise control on the matters of the children. Therefore, this matter often is often highly contentious. In this article, we will discuss the related legal rules and cases in this respect.
How to Prevent another Party from Removing the Children from Hong Kong without Permission
In case a party of the marriage is worried that the other party may remove the child out of Hong Kong without permission, the party may apply to the Hong Kong court for an order that the children be under the wardship of the court. Upon issuing such summons, the applicant can have such summons registered with the Immgrantion Department which will have the effect of restricting the children from leaving the immigration check at border.
Another way is to apply for injunction order from the court restricting the children from being remvoed out of Hong Kong.
Terms regarding Removal of Children out of Hong Kong in Divorce related Court Order
In divorce proceedings, if the parties do not take the initiative to apply to the court for permission to remove the children out of Hong Kong, it is usual for the court to have removal restrictions upon making order on custody of the Children of the Family, so that the Children of Family would not be unilaterally brought to another country out of Hong Kong and the access be affected.
If f at the outset of the divorce, parties applied to the Court to lift up the restrictions and were accepted, they save the need to apply thereafter in future. This tends to be applicable to the situation where both parents or either of them are not permanently staying in Hong Kong and it is expected that the Children of the Family would need to travel or to attend overseas.
If a request for removing the travel restrict is made after the divorce proceeding, the Court would usually need quite some time to handle such an application, and therefore it is advisable that the parrents should make such request to the court at least 2 to 3 months before the expected date of children leaving Hong Kong.
Removing Children out of Hong Kong Tempararily
The application for removal of the Children of Family can be divided into temporary application such as journeys or permanent application like immigration.
Usually, the application by way of Summons is taken out by a party and the primary carer with supporting application. If the parties consent, it would be simple. Even for a short journey, the applicant, apart from making an affirmation/affidavit, has to give undertaking to the Court and the other spouse to return the Children of the Family when asked to, provide itinerary and the contact telephone number outside Hong Kong. If the other side is not agreeable and opines that the time for access becomes less, the applicant may reallocate back the time for access stipulated on the Order for defined access.
Removing Children out of Hong Kong Permanently
For the application of permanent removal, often it is due to one party intending to leaving Hong Kong permantly with the Children of the Family as a result of the remarriage or intention to return to home country by that party. In deciding whether to allow the permant removal of the children out of Hong Kong, the paramount important issue to be considered by the Court is welfare of the Children of the Family. According to Payne v Payne [2001] Fam 473, the consideration to the court is whether the said reason set out by the applicant is genuine good for the children or it is actually for the the applicant’s selfish interest. If the disallowance of application would affect the welfare of the Children of the Family, leave should be allowed.
The destination of removal of the Children of the Family in relation to the application is also one of the considerations to the Court. In Re K (Removal from the Jurisdiction: Practice) [1999] 1 FLR 1084 and Re M (A Child) [2010] EWCA Civ 888, Patten LJ observed (at para 23):
“The overriding consideration for the court in deciding whether to allow a parent to take a child to a non-Hague Convention country is whether the making of that order would be in the best interests of the child. Where (as in most cases) there is some risk of abduction and an obvious detriment to the child if that risk were to materialise, the court has to be positively satisfied that the advantages to the child of her visiting that country outweigh the risks to her welfare which the visit will entail. This will therefore routinely involve the court in investigating what safeguards can be put in place to minimise the risk of retention and to secure the child’s return if that transpires. Those safeguards should be capable of having a real and tangible effect in the jurisdiction in which they are to operate and be capable of being easily accessed by the UK-based parent.”
In a recent case of H v W [2021] HKCA 773, the Court of Appeal refused to grant leave to the Mother to remove the child out of Hong Kong and to relocated to Singapore. The Mohter’s reason is that she can obtain a dependent visa if the children is relocated to Singapore and attend an intenational school, and that she can set up her carreer and family in Singapore with the assistance of her boyfriend who is in Singapore. The Court opined that the Mother’s plan for removing the children out of Hong Kong is not mature and is uncertain, that the removal would actually deprive the Father’s access to the children in view of transportation affected by the pademic, which is not for the best interest of the child.
About any issue of the Children of the Family, we welcome your questions and communication with the Divorce and Family law Team of YAN Lawyers.