Can I Leave Hong Kong With My Child? – Catherine Tso Examines The Approach Taken By The Hong Kong Court In Relocation Cases

Author:Ms Caroline McNally
Profession:Gall
 
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As an international finance centre, families from all over the world relocate to Hong Kong for work purposes. In the event that the relationship between the parents break down, can one of them simply return home with his or her children?

Parental removal of a child from one country to another may amount to child abduction if the removal is wrongful. Removal or retention of a child is considered wrongful if:

it is in breach of rights of custody under the law of the state in which the child was habitually resident immediately before the removal or retention, or at the time of the removal or retention, those rights were actually exercised or would have been so exercised but for the removal or retention. Therefore if a parent wishes to permanently remove a child from the jurisdiction of Hong Kong, and the other parent does not grant their consent, he or she is required to obtain permission from the Hong Kong Court.

Payne v Payne [2001] EWCA Civ 166

This English case remains the leading authority in the Hong Kong Court despite the law having moved on substantially in the UK.

The case involved a 33 year old British father and a 28 year old mother from New Zealand. The mother went to London and obtained a job, after which she met the father, got married and gave birth to a daughter, S. The mother gave up work to be at home with S.

After S was born, the parents decided to move abroad (although what was actually decided upon at the time was in dispute). The mother lived in New Zealand, while the father carried out an employment contract in Kuala Lumpur. The father claims there was no firm commitment to stay in New Zealand. When the father arrived in New Zealand, it was clear that the parents' relationship had broken down. The mother applied to the New Zealand court for custody and an order to prevent the father from removing S from New Zealand. The father made a cross-application for custody and permission to remove S from New Zealand. An order was made that S should be returned to the United Kingdom, and she travelled back accompanied by both the mother and the father.

In short, the mother was not happy in England and made an application to relocate with S to New Zealand which was successful. The trial judge found that if the mother remained in England, the effect of her "unhappiness, sense of isolation and depression would be exacerbated to a degree that could well be damaging to S". The trial judge concluded that S's welfare was the...

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