HKCA 436
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 67 OF 2018
(ON AN INTENDED APPEAL FROM FCMC 16899/2014)
||IN THE MATTER OF an application pursuant to RHC Order 59, rule 2A and 2B for leave to appeal
||IN THE MATTER OF an intended appeal from FCMC 16899/2014
Before: Hon Lam VP and B Chu J in Court
Date of Hearing: 19 July 2018
Date of Judgment: 25 July 2018
J U D G M E N T
1. In this matter, the petitioner mother in FCMC 16899/2014 applied for leave to appeal against the order of Judge Grace Chan (“the Judge”) of 21 July 2017 allowing the respondent father to remove the parties’ now 6 year old son (“Child”) permanently out of jurisdiction of Hong Kong to Australia (“the Order”).
2. The mother applied for leave to appeal from the Judge and for leave to adduce fresh evidence to show that the father had been obstructive over her access and/or to the extent that she was not allowed to see the Child. Both applications were refused by the Judge on 4 May 2018.
3. The Order was made upon undertakings by the father to (i) return the Child to the jurisdiction of Hong Kong if called upon to do so by the court; (ii) to provide the mother’s particulars to the school of the Child when so requested by the school in any application form or school record; and (iii) to cooperate with the mother in obtaining a mirror order of the Order in Australia immediately upon the removal.
4. There was no application made by the mother for stay of the Order. Subsequent to the Order, the Child left Hong Kong on 1 September 2017 and has since been living and studying in Sydney, Australia. Notwithstanding the father’s undertaking to cooperate with the mother in obtaining a mirror order, she has not taken any step to do so.
5. The background facts of this case have been set out in the Judge’s judgment of 21 July 2017 (“Judgment”) and in her decision of 4 May 2018 refusing leave to appeal (“Decision”). Briefly, both parties were born in Shantou in Mainland China and both came from wealthy families. The father emigrated to Australia with his family when he was 16 and after completing his education there in 2006, he worked for his family business in Australia for a while before moving back to work in Beijing. The parties met in Australia when the mother was attending university there and upon completion of education in 2006, the mother joined her family business in Mainland China. The parties married in December 2009 and thereafter lived and worked in Beijing. The Child was born in June 2012 and is now 6 years old.
6. In 2013, the parties made a joint decision to move from Beijing to Hong Kong and by end of 2013, the father and the Child had settled here, but the mother spent more than half of her time attending her family business in Shenzhen. The parties’ marriage broke down and a decree absolute of divorce was granted in August 2015. The parties had consented to an order made on 3 June 2015 in relation to the Child and ancillary relief (“Consent Order”). Pursuant to the Consent Order, the father has been granted sole custody, care and control of the Child while the mother has reasonable access. The parties have also agreed, amongst other things, that the Child shall not be taken out of Hong Kong or his place of residence without the consent of both parties.
7. The parties had different interpretation as to whether the mother was entitled to have access in Shenzhen pursuant to the Consent Order and the mother had issued a summons in December 2015 in relation to access in Shenzhen (“Access Summons”). The father later issued a summons in March 2016 for permanent removal (“Relocation Summons”). There has also been an interim access order in place since March 2016.
8. The father applied to relocate with the Child to Australia so that he could continue to take care of the Child on a daily basis and to conduct his business there at the same time, having taken up a redevelopment project in Sydney which will take over 6 – 7 years to complete.
9. The mother alleged that the motive of the father was not genuine, and that it was his choice, rather than a genuine need, to move to Australia permanently. She had also alleged that the father was using the Child as a “bargaining chip” for the dispute that he had with the mother’s family over aproject in Xi’an. The mother also claimed that the father had been obstructive over her access to the Child and would continue to do so, including the father refusing to let the Child go to Shenzhen to see her.
10. There were two international social investigation reports, respectively of the living condition and environment of the locality of the father’s home in Sydney and the mother’s home in Shenzhen, and one report prepared by the social investigation officer Mr Chan (“SWO”) in Hong Kong in relation to the Access Summons and the Relocation Summons. The SWO was of the opinion that it was in the best interest of the Child for him to continue living in Hong Kong.
11. There were 3 grounds of appeal, namely that the Judge:
(1) misapplied the correct legal principles;
(2) failed to give due or sufficient weight or consideration to the SWO’s recommendation; and
(3) failed to give due or sufficient weight to the mother’s fear that the father would continue to be obstructive to her access to the Child.
Ground (1)—application of the legal principles
12. The Judge had referred to the Court’s judgment in SMM v TWM 4 HKLRD 37 on relocation applications, which followed the approach in Payne v Payne  1 FLR 1052 .
13. Wall LJ pointed out in Re D (Leave to Remove: Appeal)  2 FLR 1605, that there had been considerable criticism of Payne. The decision of Payne was said to be controversial, at least in some quarters, for arguably perpetuating a covert presumption in favour of relocation, at least where the application was made by the child's primary carer . Though Re D had been decided on 9 February 2010, it was not brought to the attention of the Court of Appeal in SMM v TWM when it was heard on 7 May 2010. Instead, the parties were in agreement that the applicable principles were to be taken from Payne, see  of the judgment in SMM v TWM. The judge below actually applied Payne, see . The appeal focused on whether the judge erred in the assessment of some relevant factors as opposed to the approach in Payne. There did not appear to be any competing submissions before the Court of Appeal on the Payne approach and Cheung JA was the only judge making comments on the same specifically.
14. Mr Pang SC, appearing with Mr Yim for the mother, referred us to comments made by Judge Melloy in W, Y v L, KP FCMC 4636/2015 where it was suggested that the guidance provided by SMM v TWM needed further clarification from this Court .
15. In W, Y, Judge Melloy had considered the development in Englandsince Payne. She referred to some judicial reservations of Payne and alluded to the observations made by Moore-Bick LJ in K v K  Fam 134. In that case, Moore-Bick LJ opined that the controversy was the result of a failure to distinguish clearly between legal principle and guidance, and that the only principle of law enunciated in Payne was that the welfare of the child was paramount; all the rest was guidance . In the same case, Black LJ (as she then was) also stated that the only authentic principle that ran through the entire line of relocation authorities was that the welfare of the child is the court’s paramount consideration .
16. The third member of the English Court of Appeal in K v K, supra, was Thorpe LJ who gave the leading judgment in Payne. It is noteworthy that Thorpe LJ had this to say at  of K v K:
“ 39. As Moore-Bick LJ pointed out in argument, the only principle to be extracted from Payne v Payne  Fam 473 is the paramountcy principle. All the rest … is guidance as to factors to be weighed in search of the welfare paramountcy.”
17. In SMM v TWM, supra, in his exposition on the approach in Payne at  of the judgment, Cheung JA alluded to the judgment of Thorpe LJ and ended up by setting out a series of relevant factors at sub-paragraph (d), starting from a reiteration that the welfare of the child is always paramount . These were described as guidelines  aiming at assisting first instance judges.
18. It is clear from K v K thatthe only principle of law enunciated in Payne is that the welfare of the child (or presently in Hong Kong, best interests of the child) is paramount; the rest is guidance. This is how the comments of Cheung JA in SMM v TWM (based on Payne) should be read.
19. In the more recent decision of the English Court of Appeal In re C (A Child)  Fam 253, Vos LJ reiterated that the only test that the court applies is the paramountcy as to the welfare of the child. His Lordship further said at  and :
“ 82. … The application of that test involves a holistic balancing exercise … The exercise is not a linear one. It involves balancing all the relevant factors, which may vary hugely from case to case, weighing one against the other, with the objective of determining which of the available options best meets the requirement to afford paramount consideration to the welfare of the child. It is no part of this exercise to regard a decision in favour or against any particular available...