The New Age of International Relocation

6th World Congress on Family Law and Children’s Rights

• Angie Todd

• 18 March 2013

• Sydney, Australia

Hong Kong and demographics

• Hong Kong comprises of Hong Kong Island, Kowloon and the

New Territories

• In Hong Kong all applications for permanent removal of children

have been for international relocation; no domestic

• Even though Hong Kong is a SAR of China there is no special

consideration for removal to the Mainland or other Special

Administrative Regions

Hong Kong & International relocation

• In Hong Kong there are three published cases where leave was

not granted to the applicant at first instance; one of those

applications was overturned on appeal SMM v TWM CACV

209/2009

• Hong Kong is bound by its own Court of Appeal decision of SMM

V TWM CACV 209/2009

• reaffirms Hong Kong’s reliance on the guidance provided by

English authorities of Poel v Poel [1970] and Payne v Payne

[2001] 1 FLR 1053

Hong Kong & International Relocation post K v K: BWBP v TKnDP FCMC 2128 / 2009 (unreported)

• Mother’s application to permanently relocate to Plettenberg

Bay, South Africa

• Boys 12 and 9

• Mother born in Johannesburg and her family remained there

• Father born in Zambia and his family later relocated to South

Africa; only the paternal Grandmother continued to reside in

South Africa as the father’s brothers had relocated around the

world

BWBP v TKnDP

• Parties lived in Hong Kong since February 1996

• Father was a Captain for an airline

• Mother a speech therapist

• Each party had significant interests outside of Hong Kong with

the Mother pursuing interests in self development and personal

growth courses and retreats around the world

• Father pursued Iron Man and triathlon competition events

around the world

BWBP v TKnDP

• 2009 Consent Order:

• joint custody order of the two children

• Sole care and control order to the Mother by consent; offset by

Recitals recognising Father’s input in parenting responsibilities

• Father’s access 15 days each month (14 in February); in

accordance with his pilot’s roster

• Holidays were split in accordance with the Father’s pilot’s roster

BWBP v TKnDP

• Court stated the case was ‘different’ from the norm

• Court said that the case was ‘further complicated’ by the

landmark case of K v K

• Court considered three issues to be determined:

• Could either parent be described as primary carer

• Should permission be given for children to relocate to South Africa

• How should time be allocated once relocation issue determined

BWBP v TKnDP

• Court said case was one of genuine shared care if not

absolutely equal care

• Other considerations: travel time for Father, lack of sporting

opportunities, South Africa specific considerations of possible

displacement and opportunity given the boy’s current ages,

Mother’s plan to live on a small holding, crime

• Leave to permanently relocate was refused

• Hong Kong Guardianship of Minor’s Ordinance: welfare of the

child is paramount

JHCI v MSYI (formerly known as MSY) FCMC 12528 of 2011 (unreported)

• Judgment 15 January 2013

• Mother’s application to relocate from Hong Kong to California

• Boy and girl aged 12 and 10;

• Mother lived in Hong Kong for 18 years; Father 17 years

• Father from UK and Mother born Manila with her family having

immigrated to US

• Father 42 years old; Mother 50 years old

• Father and Mother worked in investment banking; Mother on

management side

JHCI v MSYI (formerly known as MSY) FCMC 12528 of 2011 (unreported)

• At time of Trial Father had ‘interim care and control’ order for

the elder child

• Black LJ in K v K

• Court said ‘It was made very clear to both parties … that any

preliminary skirmishes would not be entertained’.

• Court said it was a ‘look and see arrangement’

JHCI v MSYI (formerly known as MSY) FCMC 12528 of 2011 (unreported)

• Not ‘true expat’ case and bar set higher as a result

• Views of children expressed clearly: Elder child wished to

remain living with Father in Hong Kong; younger child drew on

whiteboard ‘split time equally with parents spending Sunday to

Tuesday with Father, half day with each parent on

Wednesdays, Thursday to Saturday with Mother’.

JHCI v MSYI (formerly known as MSY) FCMC 12528 of 2011 (unreported)

• Impact on Mother: ‘Likely to be devastated…likely to be angry…

however she has lived in Hong Kong for a considerable period

of time and made it her home…she has friends here. She is

able to work. She is of Asian descent’

• Leave to permanently relocate refused

• Order for joint custody with shared care of the children

Where to now … and questions?

• BWBP v TKnDP

• JHCI v MSYI

• No appeal of these cases and Court remains bound by its own

Court of Appeal decision SMM v TWM

• Questions…?