The pandemic has caused a surge in families wishing to relocate overseas. Executive Partner Caroline McNally and Partner Kajal Aswani from Hong Kong law firm Gall explore what happens when a separated or divorced parent wants to leave with the child, while the other parent wants to stay in Hong Kong, and wants the child to stay here with them.
Do I need the consent of the other parent for the relocation of my child overseas?
The short answer is yes, you will need to have consent of the other parent to relocate with your child overseas. If you leave Hong Kong without this consent, you may be viewed as wrongfully removing your child and the other parent will have recourse under the Hague Convention to seek the return of the child to Hong Kong.
When considering whether to agree to relocation, parents should be mindful that it is no longer possible to easily shuttle between countries as was the case in pre-pandemic times and there is a real possibility they may be separated from their children for prolonged periods of time.
What should I do if the other parent doesn’t consent to relocation?
Firstly, you should find out the reasons why the other parent does not agree. You may wish to seek assistance from a family mediator to help facilitate dialogue and try to reach an agreement.
If no agreement can be reached, you’ll need to make an application to the Court for permission to relocate.
What happens when I make an application?
The Court will list a hearing for case management directions that will include calling for a report from the Social Welfare Department as to whether the relocation is recommended.
Once the Social Investigation Report is available, there will be a Children Dispute Resolution Hearing during which the Judge will act in the role as a conciliator to try to assist the parents to reach a compromise.
If no agreement is reached, the matter will proceed to trial. Parents will give evidence and the Judge will decide whether to grant relocation.
What factors will the Court consider when determining my application for relocation?
The Court’s paramount consideration is what is in the best interest of the child, and it will reach its decision after undertaking a holistic balancing exercise of the parents’ respective proposals.
The Court may consider the following factors:
- Is your proposal genuine and realistic and not motivated by some selfish desire to exclude the other parent from your child’s life?
- Is the other parent’s opposition motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive?
- Would relocation have a negative impact on your child, particularly for example, denial of contact with the other parent and would it affect the opportunity of your child’s continuing contact with the left-behind parent?
How has COVID-19 affected relocation applications
In a Hong Kong Court decision in December 2020, a judge granted permission for a father to relocate with his children to Denmark. The judge focused on the long-term best interests of the children rather than on COVID-19 infection rates alone.
By contrast, the Court of Appeal recently overturned a decision to allow a mother to relocate to Singapore with her five-year-old daughter upon the resumption of the travel bubble between Hong Kong and Singapore. The Court of Appeal commented that even with the travel bubble, quarantine requirements were still in place albeit for a shortened period and it was uncertain as to whether and/or when the parents and the child would be able to travel frequently between Hong Kong and Singapore.
Cases will always be decided on their individual facts and we would recommend that parents seek independent legal advice before starting legal proceedings.
Contact Caroline (carolinemcnally@gallhk.com) or Kajal (kajalaswani@gallhk.com) if you have any queries.
3045 7688 | gallhk.com
See more helpful tips in our Living in Hong Kong section.
This article first appeared in the City Guide 2021/22 issue of Expat Living magazine. Subscribe now so you never miss an issue.
