ZFY v. SCHC

FCMP 97/2020

[2022] HKFC 143

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 97 OF 2020

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D E C I S I O N

(Costs of Expunge Summons)

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Background

1.  In this Decision, I will conveniently refer to the Applicant Mother as “M” and the Respondent Father as “F”.

2.  On 30/7/2020, M filed her 1^st Affirmation in support of her Originating Summons seeking, inter alia, permanent removal of their 6-year old child “D” to Chengdu, Mainland China. Attached to M’s 1^st Affirmation are a number of exhibits amongst which there was an audio clip of a conversation between M and D which was produced and marked as Exhibit “ZFY-18”.

3.  On 23/11/2020, F issued a Summons seeking leave to expunge Exhibit “ZFY-18” (the “Expunge Summons”) on the basis that such exhibit was scandalous and/or oppressive. F filed his supporting affirmation setting out his grounds for the application.

4.  On 5/3/2021, this Court granted an Order in terms in respect of a Consent Summons where F shall have leave to withdraw the Expunge Summons and M shall have leave to withdraw Exhibit “ZFY-18.

5.  The only outstanding matter is the question of costs which this Court decided to be dealt with on paper with directions for parties to exchange their submissions and authorities.

Applicant’s Submissions

6.  M’s Counsel Miss Lily Yu submitted that in applications to do with children, the usual order should be no order as to costs (see TPL v. WYY, CACV 47/2014 & CACV 61/2014). Such practice applied in interlocutory matters as it does upon substantive hearings (see C v. FC (Children Proceedings: Costs) [2004] 1 FLR 326.

7.  Reference was also made to the case of S v. S (HCMP No.5547/1999) where Deputy Judge Gill (as he then was) set out the principles on costs in a case involving children as follows :-

(a) In general circumstances there should be no order for costs. Parties who have a reasonable case to put forward going to a child’s welfare should not be dissuaded from doing so by threat of an adverse costs order if they do not succeed. And in a child related case there should be no perceived winner or loser, save that it is the child who is the winner.

(b) If a party has by virtue of improper conduct attracted the proceedings which but for that may have been avoided then that might well warrant ad adverse costs order;

(c) If in the course of proceedings one party behaves unreasonably in his or her conduct of the litigation then that might be recognised in an adverse costs order;

(d) The financial circumstances of the parties and how an order for costs will impact on the parties is a factor for consideration;

(e) The general rule of not ordering costs should not deter a court from exercising its discretion to do so in circumstances it finds to be exceptional not necessarily limited to a particular category of cases.

8.  The last case of TWC and LKL (FCMC No.8460/2012) in Miss

Yu’s submission was also referred to by F’s Counsel Miss Alison Choy in her submissions. Miss Yu referred to the words of the learned Deputy Judge KK Pang (as he then was) regarding the use of covert evidence by the father in that case where it was said :-

“104. ….. the use of covert surveillance evidence in proceedings in relation to children is permissible in appropriate cases. As to whether it is appropriate to use covert surveillance evidence in any case, in my view it depends on a consideration of the special circumstance of individual case with the best interest of the child as the guiding principle……

109. ….. I have seriously considered whether I should make an adverse costs order….. I accept that the Father’s use of covert surveillance evidence is not designed to manipulate and harass the Mother. I do not regard the conduct had come within the category of unreasonable litigation conduct……”

9.  M’s Counsel Miss Yu drew the Court’s attention to the fact that there was a transcript prepared in respect of the audio in Exhibit “ZFY-18” which was later produced by M under her 4^th Affirmation as Exhibit “ZFY-34”. This was filed by M and uncontested by F. The fact that only Exhibit “ZFY-18” was withdrawn by consent but Exhibit “ZFY-34” remained in the Court file indicates that F did not obtain the reliefs sought in the Expunge Summons and thus there was no basis for seeking costs as if he was the successful party in the Expunge Summons.

Respondent’s Submissions

10.  The first case which F’s Counsel Miss Choy referred to was the case Famous Marvel Company Limited & Ors v. Conversant Group Limited & Ors (unreported HCA No.2153/2009 where Hon Au-Yeung J said :-

“The principles for determining costs

22. There is no dispute that even if a case is settled except as to costs, the Court still has the power to determine which party should be liable for costs. There is no tradition for there to be “no order as to costs” in such a scenario. I am guided by the following principles in deciding costs :

(i) The Court is to decide if the party seeking costs has substantially obtained the reliefs sought in the litigation: Re Chinese United Establishment Ltd, HCCW 291/1994, 5 October 1995, Roger J (as he then was), approved in CACV 214/1995; Lai Yuet Chun v. Super Deluxe International Limited & Ors, HCCW 186/2001, 3 June 2003 Kwan J (As she then was).

(ii) At each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the Court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties. Brawley v. Marcynski (No.1) [2003] 1 WLR 813.

(iii) The Court will first consider if it is in a position to say what the likely outcome after trial would have been. If it is not in a position to do so, the order may well be no order as to costs: Brawley v. Marcynski (No.1), at para 18, Longmore LJ; followed in BCCT Software Solutions Ltd v. C Brewer & Sons Ltd [2004] FSR 150.

(iv) The Court may permit parties to adduce evidence on the question of costs: Ta Tung China & Arts Ltd v. Fontana Restaurant Ltd [1999] 1 HKLRD 404; Lai Yuet Chun v. Super Delux International Limited & Ors, at para 12. However, to say that the parties must go to trial in order to resolve any outstanding questions of costs would be contrary to the underlying objectives enshrined in RHC Order 1A rules 1 and 2: Graham M Morley v. Kwan Wo Wan & others, HCA 4366/2003, 30 December 2009, Recorder Jat SC.

(v) A broad brush can be taken by referring to all matters already laid before the Court, eg pleadings, correspondence, witness statements, transcripts of evidence and the terms of the settlement order: c.f. BCT Software Solutions Ltd v. C Brewer & Sons Ltd, at para 9; Graham M Morley v. Kwan Wo Wan & others.

(vi) The objective is to do justice between the parties without incurring unnecessary Court time and consequently additional costs: Brawley v. Marcynski (No.1).” (emphasis added).

11.  For the case of TWC and LKL (FCMC No.8460/2012), reference was made to the entire paragraph 104 in the Judgment which I took the effort of reproducing the entirety of it :

“104. Having regard to all the above matters, I accept that the use of covert surveillance evidence in proceedings in relation to children is permissible in appropriate cases. As to whether it is appropriate to use covert surveillance evidence in any case, in my view it depends on a consideration of the special circumstance of individual case with the best interests of the child as the guiding principle. Where there is clear evidence showing that the spouse is a danger to the child in question, presumably the use of covert surveillance evidence can be justified. In other cases, for my part, probably it is wise to exercise caution. It is because to spy on the other party’s private life is intrusive and is often frown upon and taken as prying and underhand by the other party when he or she finally finds out that his or her privacy has been under covert surveillance. It is going to do a lot to undermine trust between the parties. It increases the costs and expenses of the litigation. It curtails the communication between the parties. It harms their continuing relationship as parents. It increases the tension, bitterness and conflict that the parties may encounter in an adversarial litigation system. The parties may be discouraged from co-operatively working together as parents in the long run, and eventually the best interest of the child will be inevitably threatened.”

Legal principles on determining costs in interlocutory proceedings

12.  It is somehow odd that neither party provided any assistance to me as to the practice and procedural rules governing costs of interlocutory proceedings in civil cases which undoubtedly includes family cases.

13.  Given the provisions of Rule 3 of the Matrimonial Causes Rules Cap.179A, the Rules of the High Court Cap.4A shall apply with necessary modifications to matrimonial proceedings in the Family Court. The Rules of the District Court Cap.336H, insofar as costs are concerned, largely resembled the Rules in the High Court. There is no dispute that the Family Court is part of the District Court with specialised jurisdiction in both matrimonial and some other non-matrimonial but family related matters.

14.  It is trite that costs are in the court’s discretion, to be exercised judicially: see section 53(1) of the District Court Ordinance, Cap 336 and Order 62 rule 2(4) of the Rules of the District Court, Cap 336H.

15.  Following the Civil Justice Reform (“CJR”) which came into effect on 2 April 2009, the often cited general rule of “costs follow the event” no longer applies to interlocutory proceedings. They are now governed by Order 62 rule 3(2A), which provides :-

“If the Court in the exercise of its discretion sees fit to make any order as to the costs of or incidental to any interlocutory proceedings, it may, subject to this Order, order the costs to follow the event or make such other order as it sees fit.”

16.  The relevant legal principles have been usefully summarised by Hon To J in the case of Melvin Waxman v Li Fei Yu (unrep, HCA 1972/2012, 11 September 2013), at paragraph 19 :-

“19. Summing up on the post-CJR position, I think the court has much wider discretion as to costs in interlocutory proceedings. Unlike other proceedings, the general rule of costs following the events do not apply. The court is entitled to take into account all the circumstances of the case, including those set out in rule 5, to make such order as it thinks fit. In the exercise of its discretion, the court may take the issue-based approach or may take into account merit of the parties’ case or the possible outcome of the action. The circumstances of interlocutory proceedings are so numerous that it is impossible to make any general rule. Costs to follow the event and costs be to the successful party’s costs in the cause are obvious options.”

17.  In the later case of Tin Foo Investment Company Limited v. Previgor Development Limited & Ors[2018] HKCFI 2870 where Hon Lisa Wong J referred to her earlier decision in Daimler AG v Leiduck(re expert evidence) (No 3) [2018] 1 HKLRD 1188[1] where she cited and accepted the decision of Hon To J in Melvin Waxman (supra). See also Hong Kong Civil Procedure 2022, Vol 1, at paragraph 62/3/3B at 1310.

18.  Besides, Order 62 rule 5(1) sets out matters which the court shall take into account in exercising its discretion as to costs which includes :-

(aa) the underlying objectives set out in Order 1A, rule 1;

(a) any offer of contribution made under Order 16, rule 10;

(b) any payment of money into court and the amount of such payment;

(c) any written offer made under Order 33, rule 4A)(2);

(d) any written offer which is expressed to be “without prejudice save as to costs” and which relates to any issue in the proceedings;

(e) the conduct of all the parties;

(f) whether a party has succeeded on part of his case, even if he has not been wholly successful; and

(g) any admissible offer to settle made by a party, which is drawn to the Court’s attention.

19.  Further, Order 62 rule 5(2) provides :-

“(2) For the purpose of paragraph (1)(e), the conduct of the

parties includes :-

(a) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(b) the manner in which a party has pursued or defended his case or a particular allegation or issue;

(c) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and

(d) conduct before, as well as during, the proceedings.”

The Chronology

20.  It may be useful to go through some of the background leading to the filing of F’s Expunge Summons.

21.  On 30/7/2020, M filed her 1^st Affirmation in support of her　Originating Summons seeking relocation of the child D. Exhibit “ZFY-18” was included in this Affirmation. M’s Originating Summons was scheduled to be heard on 21/9/2020.

22.  On 15/9/2020, F filed his 1^st Affirmation in support of his Inter Partes Summons seeking sole custody, care and control of the child D which was scheduled to be heard at the same time as the 1^st call over hearing of M’s Originating Summons on 21/9/2020.

23.  At the hearing on 21/9/2020, F’s Counsel opposed to the production of Exhibit “ZFY-18” and this Court also noted that there was no transcript filed in respect of the audio evidence under Exhibit “ZFY-18”. M’s solicitors confirmed to the Court that a transcript of the audio for Exhibit “ZFY-18” would be produced after that hearing.

24.  On 16/11/2020, M filed her 4^th Affirmation to produce the transcript of the audio marked as Exhibit “ZFY-34”.

25.  On 23/11/2020, which was a week after M filed the transcript of the audio, F issued the Expunge Summons in the following terms :-

“1. The exhibit marked “ZFY-18” from the Applicant’s Affirmation affirmed on the 29^th day of July 2020 be struck out on the basis that it is scandalous and/or oppressive;

2. For the purposes of carrying out paragraph 1, the said Affirmation be expunged from the court and the Applicant do file a revised affirmation within 7 days; and

3. Costs of this application be to the Respondent.”

26.  For reasons unknown, both the Expunge Summons and F’s 2^nd Affirmation in support of it was dated 12/11/2020 but was only filed on 23/11/2020, which was well after M’s 4^th Affirmation and Exhibit “ZFY-34” was filed on 16/11/2020. Thus, it was not surprising for F’s Expunge Summons not to refer to Exhibit “ZFY-34” which came in after the Expunge Summons was prepared and yet to be filed. In any event, F’s Counsel Miss Choy offered no explanation in her written submissions for the “time gap” between 12/11/2020 and 23/11/2020 whilst M’s Counsel Miss Yu, in her written submissions, took upon the issue of Exhibit “ZFY-34” had never been objected by F or sought to be expunged in F’s Expunge Summons.

27.  The Expunge Summons, with leave of the Court, was listed for call over hearing at the same time as the Pre-Trial Review of M’s relocation application on 8/12/2020.

28.  Given the Covid-19 pandemic and the need to enhance social distancing for public health concern, the hearing originally scheduled for 8/12/2020 was adjourned to 5/1/2021.

29.  At the hearing on 5/1/2021, leave was granted for M to file and serve her Affirmation in opposition to F’s Expunge Summons on or before 2/2/2021 with consequential leave for F to file and serve his Affirmation in reply (if any) on or before 2/3/2021. It turned out that neither party had filed any affirmation as per the directions granted but chose to dispose of the matter by way of a Consent Summons for leave to respectively withdraw F’s Expunge Summons and M’s Exhibit “ZFY-18”.

Discussion

30.  Upon careful consideration of the case of TWC and LKL (FCMC No.8460/2012), it is clear that the learned Judge did not rule against the use of covert evidence in proceedings relating to children. The use of covert surveillance must be justified by consideration of the circumstances of the case with the best interest of the child to be the guiding principle.

31.  The question then came along was whether the audio clip was covertly obtained by M without the knowledge or consent of the child D. M in her Affirmation filed in support of the Originating Summons did not set out in any great detail of the circumstances when the audio was recorded save to say that the child D very much want to stay with her and that the idea of being apart made D very sad[2]. F in his 2^nd Affirmation filed in support of his Expunge Summons set out his “views” or “perception” as to the circumstances surrounding D when the audio clip was recorded[3].

32.  Given the fact that it was F who challenged the audio clip in that it was obtained covertly and thus it was scandalous and/or oppressive and should be expunged, he bears the burden of proving the same to the requisite standard of balance of probabilities. It is, in my decision, insufficient for F to just rely upon his own “views” or “perception” through listening to the audio in order to discharge his burden of proof. As F himself had fairly said at paragraph 13 of his Affirmation, there could have been many reasons for D’s crying so heard in the audio clip. Since the Expunge Summons had never been tried and parties’ evidence not being tested, there is no finding of fact as to any covertness or secrecy surrounding the circumstances of the audio clip as F had so alleged. This is different from the TWC and LKL case where there was a full blown trial of 9 days.

33.  There is also an important factual distinction in the present case when compared with the TWC and LKL case which must not be overlooked. For M to arrange the audio clip in order to try and reveal the wishes of the child over relocation could not be taken as comparable conduct of the husband in the TWC and LKL case for collating evidence of the wife’s personal conduct and suitability to be the carer of the child in that case. Conduct undertaken to uncover and reveal material evidence for the Court’s consideration of the issue before it is different from conduct undertaken to manipulate and harass the opponent.

34.  As early as 16/11/2020 in M’s lawyers’ letter in response to F’s intended (emphasis added) application to expunge Exhibit “ZFY-18” sent to this Court and copied to F’s lawyers, it was said :

“The Applicant take the firm view that the aforesaid exhibit is both proper and relevant, particularly given that the Minor has, in fact, been informed by the Applicant that an audio recording will in fact be taken. We have refrained from further proving the transcript of the audio clip for the reason that the upcoming Social Investigation Report will in any event be sufficient to address the Minor’s views on the issue, and there is no necessity to rely on the audio clip and add further costs and time to the application.”

35.  Despite the aforesaid explanation provided on 16/11/2020, F could have refrained from issuing his Expunge Summons even though it had already been prepared on 12/11/2020 and ready for filing. The fact that F chose to issue the Expunge Summons rather than to wait and see whether the Minor’s views were reflected in the forthcoming Social Investigation Report would have to bear those costs which would have been saved rather than spent. To the contrary, W had been fair and reasonable for not seeking costs against F. The Social Investigation Report was actually submitted to the Court on 24/11/2020, that is to say, just the day after the F’s Expunge Summons was issued.

36.  Disposal of the Exhibit “ZFY-18” by way of a withdrawal of it simultaneously with a withdrawal of F’s Expunge Summons could be said to be a “no winner/no loser” scenario to trigger the exercise of the Court’s discretion on awarding costs on the likely outcome if the Expunge Summons was fully argued. There is also no issue on litigation conduct or unreasonable behaviour which the Court need to take into account of and to make any costs or adverse costs order for achieving fairness in the case.

37.  Given that this is a child related case where parents should not be dissuaded by any costs implications for asserting his or her rights to the best they could, it is conceptually wrong to submit that “but for the filing of Exhibit “ZFY-18” and refusal to withdraw it, the Expunge Summons need not be issued.” As set out above, there was no need or real urgency for F to issue the Expunge Summons whilst the Social Investigation Report was forthcoming the following day.

Decision

38.  Given full and careful consideration of all the above and applying the cited cases and authorities, I decided that it is fair and reasonable that there should be no Order as to costs of the Expunge Summons.

Costs

39.  However, as F had refused to accept M’s proposal of no costs for the Expunge Summons which ended up with further costs being spent in resolving the matter, I decided that F should pay to M the costs of resolving the costs of the Expunge Summons, to be taxed if not agreed.

40.  I also grant Certificate for Counsel.

41.  This is a costs order nisi which would become absolute if no application is made to vary the same within 14 days from the date of this Decision.

Miss Lily Yu instructed by Messrs. Nixon Peabody CWL, Solicitors for the Applicant

Miss Alison YY Choy instructed by Messrs. Pansy Leung, Tang & Chua, Solicitors for the Respondent

FCMP 97/2020

[2022] HKFC 73

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 97 OF 2020

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D E C I S I O N

(Leave to Appeal)

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The Application

1.  On 28/1/2022 this Court handed down it Decision on Applicant Mother’s (“M’s) relocation of the daughter “D” to Chengdu, Mainland China.  Leave was granted for M to remove D permanently upon fulfilment of various conditions (“Relocation Decision”).

2.  On 7/2/2022 Respondent Father (“F”) issued a Summons seeking leave to appeal and also that there be a stay of execution of the Relocation Decision pending appeal. Upon directions from the Court, a separate Summons was issued by F and a short hearing was scheduled for 14/2/2022 solely on the stay of execution application.  After hearing parties’ submissions, an Order for interim stay pending determination of F’s leave to appeal was granted.  F’s leave to appeal was proceeded in the usual way as per the “New Arrangement for Application for Leave to Appeal in the Family Court” issued by Acting Principal Family Court Judge C.K. (as he then was).

3.  M opposed F’s application for leave to appeal.

4.  Both parties were represented by the same Counsel and law firms at the relocation trial and in this application.

F’s Draft Grounds of Appeal

5.  There are altogether 9 grounds (with sub-grounds and sub-sub-grounds) in the draft Notice of Appeal annexed to F’s Summons.  Adopting the numbered paragraphs therein, they are as follows :-

1.  The Learned Judge erred in law and in principle in holding that “in relocation cases, it would be just and fair that the concept of day to day primary care and control of the child in question should take precedence over the concept of locality”, and that “[a]part from the concept of primary care and control and locality, there was no exhaustive list of other factors for consideration of ‘status quo’ in relocation cases” when the relevant authorities have made it clear that :-

(1)   There should be no presumption in favour of the primary carer;

and

(2)   The fact that the relocation application was made by the primary carer is ultimately, merely one of the factors to be considered in the overall assessment whether the relocation is in the best interests of the child and the weight to be attached to this factor depends on the facts of the case.

2.  That the Learned Judge erred in law and in principle in departing from the recommendations of the Social Work Officer Ms Chan (“SWO”) in her Social Investigation Report dated 24 November 2020 (“SIR”) against relocation, when :

(1)   The Learned Judge erred in not affording the SWO an opportunity to respond to the misgivings that he had and/or the direction of his thoughts, which constitutes a material departure from the principles propounded by Thorpe LJ in Re A (Children: 1959 UN Declaration) [1998] 1 FLR 354 and Re W (Residence) [1999] 2 FLR 390, as well as in the majority decision of Re R (Residence Order) [2009] EWCA Civ 445, and applied in H v W[2021] HKCA 733 at §§40-42, in that :-

(a)   The Learned Judge did not raise with the SWO that it was “surprising” that she “was able to come up with her recommendation against relocation” “without the benefit of reading the [International Social Investigation Report (“ISIR”)], and that this had “made her investigation one sided and incomplete”;

(b)   The Learned Judge did not check with the SWO whether she “had personally read the comments or remarks [given by the class teacher in the Minor’s Term 1 school report] herself or that she was simply told by the class teacher and then she made a record of it in her SIR”, before finding that “the lack of transcription of the comments or remarks from the school report into the SIR might suggest that [the SWO] did not read the school report herself.  This is not satisfactory”.

(c)   The Learned Judge did not raise with the SWO that her view that the Mother might not be able to provide the Minor with the same level of care due to her work in Chengdu “was speculative rather than instructive”.

(d)   The Learned Judge did not raise with the SWO that “it is over-simplistic for [her] to pre-judge the degree of ‘parent-child’ intimacy, contact or relationship simply by looking at how far the parent and the child are living apart without considering in more detail the actual access arrangement or planning after relocation”.

(e)   The Learned Judge did not raise with the SWO that it was “speculative, unfair and unsatisfactory” that “there was no detail analysis in the SIR of the access arrangement or planning after relocation proposed by [the Mother] and the likelihood of implementation by the parties before forming the assertive views that the [Father] and [the Minor’s] relationship would no longer be direct and close.

(2)   The Learned Judge erred in finding that “[the SWO] … had not told us why [the Minor’s] best interests could not be served if [the Minor’s] care and control continue[d] to rest upon [the Mother] but only changing [the Minor’s] education from [Australian International School] in Hong Kong (“AIS”) to [Leman International School] in Chengdu (“LIS”), while in fact the SWO has fiben detailed explanation as to why the Minor’s best interests would not be served by relocating to Chengdu.

(3)   The Learned Judge erred in rejecting the SWO’s recommendation in the SIR in an unfair manner in that :-

(a)   The Learned Judge had refused the Mother’s application made at the call-over hearing on 21 September 2020 for an international social investigation report, noting in effect that such a report would not serve any useful purpose in the circumstances, thereby depriving the SWO of the opportunity of being assisted by the ISIR when she compiled her SIR; and

(b)   The Learned Judge then rejected the SIR on the basis that the recommendation therein “was arrived at without full and complete…… consideration of all material information including the ISIR”.

3.  The Learned Judge erred in misunderstanding the nature of the ISIR in that :-

(1)   The ISIR merely set out the relevant officer’s observations made during his/her visits paid to (a) the Minor’s maternal grandmother’s residence in Chengdu; and (b) the Mother’s self-owned property in Chengdu;

(2)   Further, in the “conclusion” section of the ISIR, the officer compiling the report rightly made no recommendations in favour of, or against, relocation, which is in line with the general practice and/or understanding that it is not the purpose of an international social investigation report/international welfare report to make a recommendation as to whether relocation is suitable or appropriate in the circumstances (which is the duty of the local social work officer); and

(3)   As such, the Learned Judge erred in finding that “the ISIR supports relocation”.

4.  The Learned Judge erred in failing to take into account material facts which plainly negated the Mother’s financial concerns which motivated her Application, in that :-

(1)   The Father had made it clear in his evidence that he would be willing to pay the Mother a reasonable monthly sum being her carer’s allowance to enable her to stay in Hong Kong to take care of the Minor;

(2)   The Mother had been able to conduct her Chengdu business remotely from Hong Kong since March 2020 due to Covid-19 and the travel restrictions, and there was no concrete evidence suggesting that she could not continue to conduct her business remotely in Hong Kong in the future; and

(3)   In light of the above evidence, any purported financial concerns on the Mother’s part were purely subjective and outweighed by the objective evidence that the Mother and the Minor would be well provided for even if they remained in Hong Kong, and the Learned Judge erred in proceeding on the basis that the Mother “would need to work for supporting herself no matter she stays in Hong Kong or lives in Mainland China”, thereby granting the Application which would allow her to work in Chengdu.

5.  The Learned Judge erred in treating the question of whether the Father had put in place “any solid and well-planned child care arrangement if [the Mother’s] relocation failed and that [the Mother] chooses to return to Chengdu by herself” as a relevant factor in the Application, when :-

(1)   The clear and undisputed evidence from the Mother that if her Application failed, she would remain in Hong Kong to continue to care for the Minor;

(2)   In fact, the Learned Judge himself acknowledged that “[the Mother] in her evidence in chief said if relocation was not granted, she would continue to take care of [the Minor] in Hong Kong”;

(3)   As such, the Learned Judge erred in criticising the Father for not providing “the Court with any solid and well-planned child care arrangement if [the Mother’s] relocation failed and that [theMother] chooses to return to Chengdu by herself’;

(4)   In the premises, the Learned Judge erred in finding that “the only probable reason or reasonable inference that could be drawn” from the father’s desire to keep the “status quo” should the Mother’s Application fail, “was that [the Father]….. was not as mindful as [the Mother] over [the Minor’s] care arrangement’.

6.  Further or alternative to Ground 5 above, the Learned Judge erred in finding that “[the Father] could not take it for granted or just assumed that [the Mother] would indefinitely stay in Hong Kong to take care of [the Minor] although [the Mother] had so wished”, when there was no evidence available before the Court which showed or suggested that the Mother would not remain in Hong Kong or would return to Chengdu should her Application fail.

7.  The Learned Judge erred in failing to properly and sufficiently assess the evidence of the Minor’s paternal grandmother (“Paternal Grandmother”), and/or failing to accept that he evidence squarely supported the Father’s case, in that :-

(1)   Contrary to what the Learned Judge found at §102 of the Judgment, there was no evidence suggesting that the Learned Judge should be concerned “as to whether the Paternal Grandmother….. would be willing to provide the same degree of care and affection over [the Minor] if [the Mother’s] relocation application fails’ just because the Father had previously hidden from the Paternal Grandmother his separation and divorce with the Mother;

(2)   Further, the Learned Judge erred in finding that the allegedly “not harmonious” relationship between the Mother and the Paternal Grandmother should also lead to the Learned Judge’s concern as to the Paternal Grandmother’s willingness to care for the Minor;

(3)   The above concern was plainly contradicted by the Paternal Grandmother’s evidence that she remained willing and able to care for the Minor in the future; and

(4)   In any event, the above concern was not raised with the Paternal Grandmother by the Court or any part at trial to enable her to properly address or respond to it.

8.  The Learned Judge erred in finding or implying that the Father was less willing than the Mother in shouldering responsibilities of parenthood in that :-

(1)   The Learned Judge erred in finding or inferring that the Father’s response to the Mother’s WeChat messages as referred to in §118 of the Judgment meant the Father was less willing than the Mother in shouldering responsibilities of parenthood, especially when the Father had given a thorough explanation as to why such responses were given, namely, because he was at a business event and only wanted to respond to the Mother after giving the matter full consideration, instead of giving a rushed reply there and then; and

(2)   As such, the Learned Judge erred in arriving at the said finding or inference, or drawing adverse inferences against the Father as a result of his said responses.

9.  The Learned Judge further erred in failing to take into account, or properly and/or sufficiently take into account the following facts :-

(1)   The Mother had admitted that it did not really matter to her whether Hong Kong or Chengdu was better for the Minor, as the Mother’s only concern at the time of the Application was to alter the previous situation where the Mother had to shuttle between Hong Kong and Chengdu and had to be away from the Minor from time to time, while in fact, the said situation could be prevented altogether if the Mother were to remain in Hong Kong and be provided for by the Father;

(2)   Even if the Learned Judge was correct in finding that “[i]t is in [the Minor’s] best interests to receive guidance arising from puberty from the feminine sex and that [the Mother] would be best fitted with such task”, the Minor could still benefit from the Mother’s guidance as such even if the Mother’s Application was refused, as the Mother had given evidence that she would remain in Hong Kong in such a case;

(3)   Even if the Learned Judge was correct in finding that “it appeared more probable than not that [the Minor] wished to stay with [the Mother] rather than [the Father]”, the Minor could indeed stay with the Mother even if the Mother’s Application was refused, as the Mother had given evidence that she would remain in Hong Kong in such a case; and

(4)   The Mother’s low English proficiency and the resultant inability to provide the Minor with homework assistance or to effectively participate in parent-school communication would pose problems to the Minor post-relocation, especially when the Minor is studying in an international school (namely, LIS).

The statutory provisions on granting leave to appeal

6.  The jurisdiction on granting leave to appeal was under section 63A of the District Court Ordinance, Cap.336 which provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard.

7.  The relevant test for determining whether the appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011 per Fok JA (as he then was) at paragraphs 8 and 9 of the Judgment).

Discussion

8.  For Ground 1, F submitted that this Court erred in law and in principle by placing a presumption in favour of M as the primary carer taking out the relocation application.  F referred to paragraph 51 of the Relocation Decision.

9.  Such submission was made out of context and in abstract.  At paragraph 49, this Court started with commenting on F’s case who alleged that the “statusquo” would be uprooted if relocation was granted.  This Court saw F’s contention of “status quo” was restrictively confined with the concept of “locality”.  At paragraph 51, this Court then provided its views on the concept of “day to day primary care and control” which should take precedence over the concept of “locality” and no more than that.  Thus the word “concept” was repeatedly used throughout those paragraphs.  It was always open to the Court to express its own views on parties’ stance and positions over issues before the Court making its own findings or decisions.  It is utterly wrong, with respect, for F’s Counsel to twist around by asserting that a presumption was given by the Court.  It is with dismay to note that the simple word “concept” (“概念”) was distorted, if not being confused, and taken to mean “presumption” (“推定”).

10.  As M’s Counsel rightly submitted, had the Court given the presumption so alleged by F’s Counsel, those views and analysis of the factors under the “welfare checklist”[1] would have been superfluously made or are just redundant.  

11.  Ground 1 has no reasonable prospect of success.

12.  For Ground 2, there are 3 sub-grounds of (1), (2) and (3).  Each of the sub-grounds contains further sub-sub-grounds.  I will deal with each of them in their order of sequence.

13.  Ground 2, as a whole, referred to this Court erred in law and in principle in departing from the recommendation made by the social welfare officer Miss Chan (“SWO”) in her report dated 24/11/2020 (“SIR”).

14.  Amongst the 5 sub-sub-grounds under Ground 2(1), that is, from (a) to (e), 4 of them referred to this Court not having “raised”[2] and the remaining 1 of them referred to this Court not having “checked”[3] with the SWO on those matters or areas which this Court eventually found to be wanting or unsatisfactory in the SIR so stated in the Relocation Decision.

15.  In all cases where social welfare officers are directed to attend Court to testify on their investigation report(s), by the time the report(s) would have already been prepared and submitted to the Court, parties would be given sufficient time and chance to raise proper questions to the social welfare officer with the aim to try to uphold or to challenge the recommendations he/she made in the report(s).  There is no exception in the present case.

16.  Grounds 2(1) (a) to (e) seem to suggest that the Court should, during the testimonies of the SWO, step into the arena and to seize upon itself the role of the advocates by questioning the SWO, either to raise or to check with the SWO over matters which, unless supplemented or clarified, would render the SIR not being accepted.  Such submission is, in my decision, inherently wrong for the following reasons. 

17.  First and foremost, it is the duty of the advocates and not the Court to “remedy” any shortcomings found in the SIR through questioning the SWO.  Given the need for independence and impartiality of the Court, any remedial steps on shortcomings found in the SIR must be handled by the parties or their lawyers themselves and not by the Court.  This well founded rule of practice explained why the SWO was only subject to “examination/questioning” by the parties and also question(s) from the Court (but only if it sees fit). 

18.  The social welfare officer is a witness arranged by the Court and not by the parties.  Thus, there was no “examination in chief” or “cross examination” of the SWO by either party.  The way in which F’s Counsel so submitted in this ground of appeal is to say the Court should “put the Court’s views” to the SWO for him/her to explain or comment and; failing which, it was an error or law.  With respect, such submission was never heard of.    

19.  The role of the Court, insofar as the evidence of the SWO is concerned, is only to adjudicate upon them and not to assist in them.  This is especially the case when the parties are legally represented by experienced Counsel and advocates.  For otherwise, apart from the risk of lack of impartiality, there is also the potential danger of the Court being criticized for taking side with the party whose case was later found to be supported by the SWO evidence (but only after the Court’s “putting the Court’s views” to the SWO, so to speak).    

20.  M’s Counsel Miss Yu referred me to the judgment of Kwan JA in the case of王訴韋 (unreported, CACV No./153/2012)[4].  Actually, this was a case on appeal from this Court’s decision many years ago, to be still the correct law and approach in handling SWO’s evidence.  I agree.

21.  Secondly, F’s Counsel was unable to identify with any precision any errors of law or errors in principle within those paragraphs[5] in the Relocation Decision.  They are only bare assertion of errors of law or errors in principle without any substance.

22.  Ground 2(2) referred to paragraph 139 of the Relocation Decision and cross referenced to paragraphs 57 to 59 of Miss Chan’s SIR.  Same and again, such ground was made out of context. 

23.  First, Miss Chan’s own admission during examination by M’s Counsel that she had not investigated into M’s proposal of LIS could not be challenged[6].

24.  Secondly, at paragraphs 58 to 64 and 66 of the Relocation Decision, this Court had already considered the reasons put forward by Miss Chan in paragraph 57 of her SIR.

25.  Having said, as rightly submitted by M’s Counsel’s Statement of Opposition[7], F’s Counsel only referred to the Court’s conclusion of the SIR without regard to any of the analysis for arriving at the conclusion.

26.  For Ground 2(3)(a), submission was made to the Court’s refusal of M’s application for ISIR at the first call-over hearing on 21/9/2020; and at Ground 2(3)(b), F submitted that this Court then rejected the SIR’s recommendation for failing to consider the material information in the ISIR.

27.  The first call-over hearing on 21/9/2020 was scheduled for M’s Originating Summons for relocation dated 30/7/2020.  On 10/9/2020 (that is around 11 days before the first call-over hearing), F issued an Inter Partes Summons seeking custody, care and control, and also interim access of the child D.  With the leave of the Court, F’s Summons was then fixed for the same first call-over hearing on 21/9/2020 together with M’s Originating Summons.

28.  Clearly, the parties’ cross applications by their nature are mutually exclusive and that they need to be dealt with in sequence and not simultaneous.  Apart from general directions on exchange of affirmations and arranging separate social investigation report(s) on M’s relocation application and F’s interim access application, the ISIR was not arranged at the first call-over hearing for obvious reasons.

29.  First and foremost, parties had yet to agree on which one of the cross applications should take precedence.  If M’s Originating Summons was to be dealt with first, both the ISIR and updated SIR would be needed.  If F’s Inter Partes Summons was to be dealt with first, the ISIR would only be needed if F failed in his application.  In any event, neither party had applied by way of separate Summons seeking directions on ISIR to be granted at the first call-over hearing on 21/9/2020.

30.  F’s Counsel now referred to the views expressed by M’s lawyers at the first call-over hearing on 21/9/2020 about the need of an ISIR (at 12:32:44 hours) not being accepted by the Court on that day as one of F’s grounds of appeal.  This must be wrong.  Reason being that actually on that day F’s Counsel (from 12:33:57 to 12:34:02 hours) also shared the same view of the Court that an ISIR was not needed.  Having said, F’s Counsel would now be “barred/estopped” from relying upon the rejection of the idea of an ISIR by the Court on 21/9/2020 to support F’s grounds of appeal.  

31.  Further, apart from the absence of any Summons by either party for the ISIR, in the absence of parties’ consensus or court’s directions on case management, as hardly there would there be any at the very first call-over hearing, ISIR was not arranged on 21/9/2020 for obvious reasons, namely, (i) to avoid unnecessary costs being incurred; and (ii) any undue conjecture over M’s relocation application would take precedence over F’s application.

32.  It was only until the Pre-Trial Review hearing (PTR) on 5/1/2021 that F’s application was adjourned to the last day of trial of M’s relocation application.  Such case management arrangement was not opposed by F.  ISIR was then called for by the Court.

33.  Given the above chronology and events happened, there had never been any question of the Court refusing M’s application for ISIR on 21/9/2020 so asserted by F’s Counsel under Ground 2(3)(a).  As F was represented by the same law firm and engaged the same Counsel throughout all hearings since commencement of these proceedings, it was noted with dismay for F’s Counsel to now raise such ground of appeal which was clearly unsustainable.

34.  Ground 2(3)(b) was also devoid of merits. The rejection of the SIR was upon the SWO Miss Chan being able to confirm her recommendation made on 24/11/2020 at the trial in June 2021 (emphasis added), that is, over 6 months after the ISIR dated 6/5/2021 was obtained notwithstanding her own admission that she had not investigated into the contents of the ISIR, which had therefore made her recommendation “one-sided and incomplete”[8].

35.  Ground 2, as a whole, has no reasonable prospect of success.

36.  For Ground 3, F’s Counsel had not referred to any cases or authorities setting out the importance and weight to be attached to an ISIR when the “local” SIR was found to be unsatisfactory and the recommendation therein not accepted by the Court.  From reading the contents of the ISIR, which was neither discredited by F’s Counsel at trial by calling the ISIR officer Miss Chung for examination nor “disapproved” by the SWO Miss Chan in any updated SIR, this Court was entitled to treat the ISIR as the “eyes and ears of the Court”[9] to determine whether the contents of it would serve the best interests of the child D[10].  The option of relocation was manifest and clearly spelt out in the ISIR.

37.  Ground 3 has no reasonable prospect of success.

38.  For Ground 4, F referred to M’s financial concerns, which motivated her relocation application, had been negated by :

(a)  F would be willing to pay M reasonable sum as her carer’s allowance in his evidence at trial;

(b)As M had been able to conduct her Chengdu business remotely in Hong Kong since March 2020, there was no concrete evidence that she could not do so in future;

(c)  M and the child D would be well provided for even if they remained in Hong Kong and this Court erred in its finding that “M would need to work for supporting herself no matter she stays in Hong Kong or lives in Mainland China”.

39.  F’s “willingness” to pay M carer’s allowance in future was only spelt out “ad-hoc” during re-examination at trial by his Counsel but not at any time earlier or had he ever said so in any of his Affirmations.  Apart from being unable to answer this Court’s enquiry as to what level of reasonable sum he had in mind, F had never offered to do so or indicated any intention to do so whilst opposing the other summons filed by M for interim maintenance for the child D. 

40.  M’s evidence that she had been conducting her Chengdu business remotely in Hong Kong since March 2020 was solely due to travel restrictions caused by the Covid-19 pandemic.  M frankly admitted that this could not be a long term arrangement and that she has to travel for her work as and when situation improved.  Such uncontroverted evidence clearly and sufficiently negated F’s submission of the need of concrete evidence.  As a matter of basic rule of evidence, it is for F to rebut M’s uncontroverted evidence and not for M to further substantiate it by what F described as “concreteevidence”.

41.  M and the child D would be well provided for was not supported by any evidence except F’s “ad-hoc” oral evidence which only came out at re-examination; but even that is the case, how could F’s case of “well provided for” be substantiated without any amount before the Court even after he had been given a chance to tell the Court ?

42.  Ground 4 has no reasonable prospect of success.

43.  Ground 5 contains 4 sub-grounds.

44.  Grounds 5(1) and (2) referred to M’s evidence that if her relocation fails, she would remain in Hong Kong and would continue to take care of the child D in Hong Kong.  Apparently, F’s Counsel was again referring in abstract only to the first two lines (emphasis added) in paragraph 83 of the Relocation Decision without being able to identify what errors of law in the rest of that paragraph and in paragraph 84 that follows.  F’ Counsel also failed to identify any errors of law for the Court’s views over F’s wishful thinking or assumption that M would indefinitely stay in Hong Kong should her relocation fails[11], given the fact that M has no “resident status” in Hong Kong, her age of 28 and the child’s age of only 7 are all important undisputed facts.  

45.  Grounds 5(3) and (4) referred to this Court having criticized F for (i) lack of well-planned child care arrangement[12]; and, erred in finding against F for (ii) not being mindful as M on child care arrangement by drawing such inference from F’s case and his desire to keep the “status quo”[13].

46.  On all the F’s evidence and his case in opposition to M’s relocation application, it could hardly be disputed that F had not had any child care arrangement save and except his idea of keeping the kind of “status quo” in his mind which had taken place since 2017 to continue.

47.  At the expense of repeating this Court’s findings in the Relocation Decision,  F had not even been able to, or did he ever, tell the Court anywhere in his evidence, orally or in his affirmations, as to whether he would be moving himself back to stay with the child D at the Wellington Street property; or whether the Paternal Grandmother would be moving there to stay with the child D; or whether the child D would be moving out of the Wellington Street property to stay with the Paternal Grandmother at her residence in Caine Road. 

48.  The criticism, a term used by F’s Counsel, or findings against F are all well founded and justified.

49.  Ground 5, as a whole, has no reasonable prospect of success.

50.  Ground 6 was a further ground or an alternative to ground 5.

51.  F’s submission under this ground is misconceived.  At the time of trial in June 2021, F’s application for custody, care and control of the child had yet to be tried.  It could hardly be disputed that M’s continual stay in Hong Kong as a “non-resident” was premised upon her role as the primary carer for the child D who was born in Hong Kong.  With all options open to M and F’s litigation down the road being undecided, the Court’s views under paragraph 97 of the Relocation Decision does not constitute any errors of law or unjustifiably made.

52.  Ground 6 has no reasonable prospect of success.

53.  I will deal with each of the sub-grounds under Ground 7 as follows.

54.  Ground 7(1) is, with respect, devoid of merits.  Given that best interest of the child is the sole and paramount consideration of the Court, and that each case is fact-sensitive, I failed to accept F’s submission that there was no evidence to suggest to the Court that it should be concerned about the degree of care and affection to be provided by the Paternal Grandmother to the child D.  Quite to the contrary, there hardly need any evidence on the table before the Court could take such important factor on board into consideration to find where the best interests of the child D lies.

55.  It was precisely the Court’s concern when it came to know that F had hidden from the Paternal Grandmother his separation and divorce with M until lately in September 2020, when he needed the Paternal Grandmother to be his witness in these proceedings, that is over 2 years after the PRC divorce, notwithstanding that he had all along been expecting the Paternal Grandmother to assist him in the child caring as part and parcel of his idea in mind of keeping the “status quo”.  Putting the need to hide away from the Paternal Grandmother and her character as a traditional Chinese woman, so described by F himself upon the Paternal Grandmother, well supported the Court’s concern over the degree of care and affection that would be given to the child D if M’s relocation failed.    

56.  Ground 7(2) referred to this Court’s finding of the “non harmonious” relationship between M and the Paternal Grandmother led to the Court’s concern over the willingness of the Paternal Grandmother to take care of the child D.  Such finding of fact was reached upon close scrutiny of the Paternal Grandmother’s affirmation evidence and her oral evidence at trial.  F’s Counsel failed to identify any errors of law.

57.  Ground 7(3) is only about F’s discontent with this Court not accepting Paternal Grandmother’s evidence with no errors of law involved.  This is purely a question of fact finding and credibility.

58.  For Ground 7(4), it was the same as in the evidence of the SWO, as it appeared that F’s Counsel was suggesting a somewhat “positiveduty” on the Court to raise with the Paternal Grandmother witness whatever concern the Court had in mind and for her to respond or address.  Failing to do so would be a ground for seeking leave to appeal. 

59.  With respect, this must be wrong.  It has never been the Court’s duty to reveal its concern over any weaknesses in the evidence of a party’s witness notwithstanding that the Court has an inquisitorial role and function.  To do so would be descending into the arena to assist the parties’ case rather than adjudicating on the evidence to resolve their disputes.  The Court would only raise questions so far as they are proper and necessary for determination of the issues involved.  Supplement to or clarification of a witness’s evidence has never been the task of the Court.

60.  Ground 7, as a whole, has no reasonable prospect of success.

61.  Ground 8 referred to the Court’s finding of facts over some WeChat messages produced by M.  The submission made was that F had given a thorough explanation for those responses under cross examination.

62.  The WeChat messages were produced by M before the trial commenced.  F with the benefit of legal advice chose not to respond before trial by affirmation and, same as with the topic of carer’s allowance, only chose to provide an “ad-hoc” explanation by oral evidence when he was being cross examined at trial.  This was unsatisfactory and unaccepted by the Court.  There was no errors of law involved as this was purely the Court’s finding of facts and credibility.  The Court is always entitled to reject or disbelieve a witness’s evidence on facts.    

63.  Ground 8 has no reasonable prospect of success.

64.  Grounds 9(1), (2) and (3) referred to M’s evidence that she would remain in Hong Kong if her relocation application failed and that the child could still benefit from M’s guidance and care. These are all factual evidence fully considered by the Court in its analysis of M’s case of the need for relocation[14]. Hence, there was issue of the Court failing to take those factual matters in account nor was there any errors of law to mount as a ground of appeal.

65.  Ground 9(4) referred to M’s English proficiency.  This has been canvassed and considered under the “welfare checklist”.  F’s Counsel failed to identify any errors of law involved.

Any other grounds in the interests of justice?

66.  Apart from the 9 grounds of appeal listed, there was no submissions by F that leave to appeal should be granted on such “otherwise ground”, that is, it is in the interests of justice to grant him leave to appeal.  Nonetheless, consideration had also been given to this limb.

67.  After giving full and careful consideration, this Court found that no such ground exists in the circumstances of this case.

Decision

68.  For all the reasons above, I decided that F’s application for leave to appeal fails.

Costs

69.  Given the fact this is a child related matter, I decided that there be no Order as to costs, including all costs reserved, to be a fair and reasonable costs order.

Stay of Proceedings

70.  Following this decision on F’s leave to appeal application, I decided that the order granted on 14/2/2022 for stay of the Relocation Decision be set aside.

71.  The Relocation Decision dated 28/1/2022 stands.

Orders

72.  I now grant the following Orders :-

(a)  F’s Summons dated 7/2/2022 for leave to appeal be dismissed; and

(b)There be no Order as to costs of F’s Summons, including all costs reserved (if any).

73.  This is a costs order nisi which would become absolute if no application to vary the same was made within 14 days from the date of this Decision.

FCMP 97/2020

[2022] HKFC 24

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 97 OF 2020

________________

____________________

____________________

________________

D E C I S I O N

(Relocation)

________________

Introduction

1.  This is the application by the Applicant mother (“M”) for leave to permanently relocate a child, who was at the age of 7 as at the date of this trial, to Chengdu, Mainland China (“Chengdu”).  In this Decision, I will refer to the child as “D” and the Respondent father as “F” for the sake of convenience.

Background and Chronology

2.  In an earlier decision on litigation funding handed down by this Court on 18/6/2021, the background of this case[1] have been set out which I do not intend to repeat here.

3.  Suffice is to say that F had issued a Summons seeking custody, care and control of D on 15/9/2020 (“F’s Custody Summons”) after M issued the Originating Summons dated 30/7/2020 for relocation.  F’s Custody Summons had now been adjourned to be dealt with after disposal of M’s relocation application.  Besides, F also issued a Summons on 12/11/2020 (“F’s Expunge Summons”) for leave to expunge an exhibit “ZFY-18” which was produced by M in her supporting Affirmation filed in these proceedings. F’s Expunge Summons had now been disposed of by M’s withdrawal of that exhibit save and except the question of costs of F’s Expunge Summons which was directed to be dealt with by way of paper disposal. The decision of which has yet to be handed down.

4.  There is not much dispute between Counsel for the parties as to the law and legal principles applicable in relocation cases.  Both parties referred to various cases and authorities in their submissions.  It is also common ground that the parties are not pursuing or contesting their respective cases with any ulterior motive or selfishness or desire to exclude the other parent from D’s life.  That said, the only issue is what arrangement would be in the best interests of D, that is to say, whether D to continue to stay in Hong Kong with F or to relocate to Chengdu with M.

5.  Initially M intended to arrange her mother who was living in Chengdu to give evidence through video conferencing.  This was somehow withdrawn before trial.  On the other hand, F arranged his previous domestic helper to testify at trial, who had already filed a witness statement[2], but this was also withdrawn because the current employer of the domestic helper did not release her to give evidence in Court.  F only arranged his mother, the paternal grandmother of D, as his witness.  She filed her affirmation[3] and testified at trial.

6.  At the 1^st call over hearing on 21/9/2020, this Court called for a Social Investigation Report (“SIR”) on relocation, granted directions for filing of affirmations and adjourned for a Pre-trial Review.  The SIR dated 24/11/2020[4] was prepared by the Social Investigation Officer (“SWO”) Miss Chan.

7.  At the Pre-trial Review hearing on 5/1/2021 before Deputy Judge Thelma Kwan, an International Social Investigation Report (“ISIR) was called for in respect of D’s intended school, residence, general environment and care support in Chengdu, such report to be available on or before 1/6/2021.   M’s relocation application was then set down for trial from 22/6/2021 to 25/6/2021 with 4 days reserved.[5]

8.  On 14/4/2021, M’s lawyers wrote to seek leave for issuing a Summons (“M’s Intended Summons”) to be heard on 26/4/2021 which was a date scheduled for directions on M’s earlier Summons seeking litigation funding.  M’s Intended Summons sought for (i) interim maintenance for D; and (ii) Updated Social Investigation Report for relocation and regular and staying access.  This Court refused the application for M’s Intended Summons to be scheduled for hearing on the date of 26/4/2021.

9.  On 21/4/2021, M’s lawyers wrote again seeking clarification on the Court’s refusal of scheduling M’s Intended Summons to be heard on 26/4/2021.  This Court replied as follows :

“The Summons will be fixed and heard on a separate date.”

10.  On 26/4/2021 and after the directions hearing of M’s litigation funding Summons in the morning, M’s lawyers issued the Intended Summons in the afternoon of the same day and, for reasons unknown, scheduled it to be heard on 5/7/2021 at 10:00 a.m. (that is, after the commencement of trial which would be started on 22/6/2021).

11.  The ISIR was dated 6/5/2021[6] and was prepared by one Miss Chung.

12.  At the hearing on 5/7/2021, M’s lawyers saw fit to seek leave to withdraw the application for Updated Social Investigation Report.  Leave was granted at the hearing.  Hence, Updated Social Investigation Report was not obtained.

The statutory provisions

13.  Section 3(1) of the Guardianship of Minors Ordinance, Cap.13 (“GMO”) is the governing provision covering all kind of applications concerning children, irrespective whether they are born out of cohabitation or wedlock.  Under the section, the often cited “best interests of the minor” is the sole and paramount consideration of the Court which could only be determined after thorough consideration of all subjective and objective factors, surrounding circumstances and evidence available to the Court, including Social Investigation Reports and Expert Reports (if any). 

14.  Given the fact that there has not been in place any list of factors in our statute by way of guidance, it is not uncommon for our Courts to refer to the so-called “welfare checklist” under the English Children Act 1989 when determining the best interests of a child.  Those factors are :-

(a)   the ascertainable wishes and feeling of the child concerned (considered in the light of his age and understanding);

(b)   the child’s physical, emotional and educational needs;

(c)   the nature of the relationship of the child with each of the child’s parents and with other persons;

(d)   the likely effect on the child of any change in the child’s circumstances;

(e)   the child’s age, maturity sex, social and cultural background and any other characteristics which the court considers relevant;

(f)   the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

(g)   any harm which the child has suffered or is at risk of suffering;

(h)   any family violence involving the child or a member of the child’s family;

(i)   how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(j)   the practical difficulty and expense of a child having contract with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(k)   the range of powers available to the court under the 1989 Act in the proceedings in question;

(l)   any other fact or circumstance that the court thinks are relevant.”

Cases and Authorities

15.  To start with, the Hong Kong Court of Appeal in SMM v TWM(Child : Relocation) [2010] 4 HKLRD 37 adopted the English Court of Appeal case of Payne v Payne [2001] 1 FLR 1052 where Cheung JA said :-

“The principles

19. The parties agreed that the applicable principles governing relocation application are based on the Payne v Payne [2001] Fam 473 line of cases. They are English Court of Appeal cases. There is no House of Lords’ decision on this issue. These principles have been applied in Hong Kong, for example, in M v B(Removal of childrenfromthe Jurisdiction) [2009] HKFLR 349, by Judge Bruno Chan although there has not been any Hong Kong Court of Appeal decision on relocation applications.

20. Payne is based on the earlier decision of Poel v Poel [1970] 1 WLR 1469. In Re G. (Leave to remove) [2008] 1 FLR 1587 the English Court of Appeal reaffirmed the principles in Payne.

21. The principles in Payne can be summarised as follows :

(a) The distinct features of a relocation application are first, the applicant is invariably the mother and the primary carer; second, generally the motivation for the move arises out of her remarriage or her urge to return home; and third, the father’s opposition is commonly founded on a resultant reduction in contact and influence. (per Thorpe LJ at paragraph 27]

(b)   The two propositions that have been consistently applied by the Courts are, first, the welfare of the child is the paramount consideration, and second, refusing the primary carer’s reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children.  Therefore her application to relocate will be granted unless the Court concludes that it is incompatible with the welfare of the children. (per Thorpe LJ at paragraph 26)

(c)   The application should be approached as follows :

(i)    Is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life ?  Then ask, is the mother’s application realistic, i.e. founded on practical proposals both well researched and investigated ?  If the application fails either of these tests, refusal will inevitably follow.

(ii)   If, however, the application passes these tests then there must be a careful appraisal of the father’s opposition: is it motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive ?  What would be the extent of the detriment to him and his future relationship with the child were the application granted ?  To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland ?

(iii)  What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal ?

(iv)  The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist in so far as appropriate. (per Thorpe LJ at paragraph 40)

(d)   In short, the relevant factors are :

(i)    The welfare of the child is always paramount.

(ii)   There is no presumption created by section 13(1)(b) of the English Children Act 1989 in favour of the applicant parent.

(iii)  The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.

(iv)  Consequently the proposals have to be scrutinised with care and the Court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.

(v)   The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.

(vi)  The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.

(vii) The opportunity for continuing contact between the child and the parent left behind may be very significant. (per Butler-Sloss P at paragraph 85)” 

16.  In the later case of K v K [2012] Fam 134 where Moore-Bick LJ said :

“86. I accept, of course, that the decision in Payne v Payne is binding on this court….. but it is binding in the true sense only for its ratiodecidendi. Nonetheless, I would also accept that where this court gives guidance on the proper approach to take in resolving any particular kind of dispute judge at all levels must pay heed to that guidance and depart from it only after careful deliberation…..having considered Payne itself and the authorities in which it is discussed, I cannot help thinking that the controversy which now surrounds it is the result of a failure to distinguish clearly between legal principle and guidance …. As I read it, the only principle of law enunciated in Payne is that the welfare of the child is paramount; and all the rest is guidance. Such difficulty as has arisen is the result of treating that guidance as if it continued principles of law from which no departure is permitted. Guidance of the kind provided in Payne v Payne is, of course, very valuable both in ensuring that judges identify what are likely to be the most important factors to be taken into account and the weight that should generally be attached to them.”   

17.  In the same Judgment, Black LJ went further to say that the welfare of the child is the paramount consideration of the Court.  At paragraphs 141 and 142, it was said :

“141. The first point that is quite clear is that, as I have said already, the principle – the only authentic principle – that runs through the entire line of relocation authorities is that the welfare oif the child is the court’s paramount consideration. Everything that is considered by the court in reaching its determination is put into the balance with a view to measuring its impact on the child.

142. Whilst this is the only truly inescapable principle in the jurisprudence, this does not mean that everything else – the valuable guidance – can be ignored. It must be heeded for all the reasons that Moore-Bick LJ gives but as guidance not as rigid principle so as to dictate a particular outcome in a sphere of law where the facts of individual cases are so infinitely variable.”

18.  Thorpe LJ, as the third member in K v K (supra) who gave the leading judgment in Payne v Payne (supra) said :

“39. As Moore-Bick LJ pointed out in argument, the only principle to be extracted from Payne v Payne [2001] Fam 473 is the paramountcy principle. All the rest….. is guidance as to the factors to be weighed in search of the welfare paramountcy.”

19.  In the recent case of JTMW v NAV[2020] HKFC 244 in our courts, my learned brother Judge I Wong went through the line of authorities on relocation and said :

“52. Recently, in ZJ v XWN (Leave to Appeal: Child Relocation) [2018] 3 HKLRD 644, [2018] HKCA 436, CAMP 67/2018, the Court of Appeal, after having reviewed K v K(Children:Permanent Removal from Jurisdiction) [2011] EWCA Civ 793, [2012] Fam 134 and Re C(A Child) (Internal Relocation) [2016] Fam 253, confirmed that the only principle of law enunciated in Payne is that the best interests of the child is paramount and the rest is guidance and that Cheung JA’s comments in SMMv TWM should be read in that light: at [18] and [23]. The Payne guidance should not be regarded as a prescriptive blueprint: at [22].

53. The Court of Appeal endorsed what Vos LJ said in ReC (A Child) (Internal Relocation) at [82[ and [83] :

“82. I add a few words in an attempt to summarise the position that has now been reached. As counsel before us agreed, in cases concerning either external or internal relocation the only test that the court applies is the paramount principle as to the welfare of the child. The application of that test involves a holistic balancing exercise undertaken with the assistance, by analogy, of the welfare checklist, even where it is not statutorily applicable. 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 meet the requirement to afford paramount consideration to the welfare of the child. It is not part of this exercise to regard a decision in favour or against any particular available option as exceptional.

83. One of the most difficult aspects of this case has been to establish in the light of previous authority what use, if any, should be made in the process we have just described of the 4 “disciplines” identified by Thorpe LJ at paragraph 40 of his judgment in Payne v Payne ([2001] EWCA Civ 166, [2001] 1 FLR1052) (the “Payne factors”). In my judgment, one of the valid concerns about the Payne factors is that they do not adequately reflect the gender-neutral approach to these problems that the court will now adopt in every case. Whilst the Payne factors may still be of some utility in some cases, they are no part of the applicable test or the applicable principles. In some circumstances, the judge may find them useful. In others, the judge may not. If the judge finds them a useful guide to some of the factors that he should consider, he will be doing so only as part of the multi-factorial balancing exercise that is required.”

54. The Court of Appeal also dealt with the use of the “welfare checklist” in the balancing exercise.  The “welfare checklist” is only an aide-memoire.  A judge is not required to mechanically list every factor to demonstrate that he has considered the same.

55.  The Court of Appeal emphasized that the guidance in Payne or SMM v TWM or the welfare checklist are simply tools to assist a Family Judge in making the multifactorial assessment to reach a result which is in the best interest of the child after taking account of the potential impact on the parents: at [30]”

20.  In the most recent Hong Kong Court of Appeal decision in H v W [2021] 2 HKLRD 1251 (date of Judgment : 24/5/2021), the legal principles on relocation cases were once again summarised.  The Payne guidelines was said to have identified a number of relevant factors which provided the Court with a structured framework to make holistic appraisal.   The Court (Hon Lam VP, Yuen JA and B Chu J) said :

“The legal principles 31. There was no dispute as to the applicable legal principles on relocation as summarised by the Judge in paragraphs 16 to 20 of the Judgment. In fact, shortly after ZJ and XWN [2018] 2 HKLRD 644,Cheung JA again set out the legal principles in paragraphs 4.1 to 4.14 of his judgment in BA v BL(Child Relocation) [2019] 4 HKLRD 23, [2019]HKCA 822, CACV 18/2018. In particular, paragraph 4.14 states as follows :

“In Hong Kong the paramount consideration is whether the relocation is in the best interests of the child. Hence whether a relocation application is made by a primary carer or a non primary carer does not give rise to any presumption in favour of or against the applicant. There may be myriad reasons why such a parent applies for the relocation of the child. Ultimately it is one of the factors to be considered in the overall assessment whether the relocation is in the best interests of the child and the weight to be attached to this factor depends on the facts of the case. The value of Payne is that it ‘identifies a number of factors which will or may be relevant in a relocation case,explains their importance to the welfare of the child, and suggests helpful disciplines to ensure that the proper matters are considered in reaching a decision but it does not dictate the outcome of a case’ per Black LJ at [144] in K v K. In my view Payne is not to be jettisoned. The relevant factors provide a structured framework in which the appraisal is to be made holistically.”

32. The Payne guidance can be summarised as (1) Is the applicant’s proposal genuine and realistic in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life ?  (2) Is the respondent’s opposition motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive ?  (3) What would be the impact on the applicant, either as the single parent or as a new spouse of a refusal of his/her realistic proposal ?  (4) The outcome of the appraisals in (2) and (3) must be considered in the overriding review of the child’s welfare [on in Hong Kong the child’s best interests] as the paramount consideration.”

21.  With all the above cases and authorities, I would conduct a holistic balancing exercise upon the evidence before me, guided by the Payne approach and taking into consideration of any relevant factors under the “welfare checklist” as an aide-memoire to determine what outcome would fit the best interests of D.

Mother’s (M’s) case and Proposals

22.  M is a PRC citizen now aged 28.  Her hometown is in Chengdu, Mainland China, where she was born and raised. Her maiden family is still living there.  She married F in Chengdu in 2014.  She came to Hong Kong on a visitor visa in the same year to give birth to D.

23.  Shortly after delivery, M and D returned to Chengdu and stayed there for around 6 months.  D’s maternal grandmother helped M in taking care of D.  In 2015, M and D came back to Hong Kong to join F.  F is a Hong Kong citizen and that all along he was working here.  M had not applied for residency status in Hong Kong as the wife of F even up until their divorce in 2018.

24.  Sadly, the parties’ relationship drifted apart and their marriage broke down.  In May 2018, for reasons not fully disclosed in these proceedings or that there might be no particular reasons, the parties chose to enter into a Divorce Agreement (“DA”) in Chengdu as opposed to filing divorce proceedings in Hong Kong for ending their marital relationship.   

25.  Under the DA, M would have the custody of D.  M and D were to live in Hong Kong and F was to arrange accommodation for them.  F would also pay monthly maintenance of HK$8,000 if M and D stay in Mainland China; or a monthly maintenance of HK$16,000 for those months where they stayed in Hong Kong. 

26.  M’s reasons for relocation[7] are set out as follows :-

(a)  M could not work in Hong Kong given her non-resident status.  Due to her work commitment with a PRC company, M needed to take extended periods of time every month on travelling for earning income to support herself and D. This was unsustainable in the long run as D would then be

taken care of by the paternal grandmother and domestic helper despite the fact that she was the main carer of D.

(b)The increasingly unstable social political situation in Hong Kong, public discontent and unrest, widespread violence and riot had caused M to consider Chengdu, Mainland China, is a safe and stable place to assure the safety of D.

(c)  The education system in Hong Kong had caused tremendous stress to D who had expressed unhappiness to her.  The early school hours and incessant school interviews that D had to attend in order to keep pace with the competitive education in Hong Kong had even caused D cried bitterly a few times after she attended a few school interviews.

(d)It is opportune time for D at her present age to resettle in Chengdu, Mainland China, as it would be easier for her to adapt and assimilate to the culture.

27.  For the relocation plan, M had enlisted D with “LIS” which is an international school located in the heart of Chengdu.  LIS is running the International Primary Curriculum for their primary section and International Baccalaureate Programme for their secondary education.  The school is a reputable one and is part of the Nord Anglia Education within a family of 66 premium international schools in 29 countries.

28.  LIS has a 25-hectare campus including art and music facilities, a 25-meter heated swimming pool, outdoor play areas, green space, athletics track and outdoor sport grounds.  LIS also offered an extensive range of extra-curricular activities such as swimming classes, golf classes and horse riding classes. 

29.  For accommodation arrangement, M had bought a property of the size 179 square meters (around 1800 square feet) in the city of Chengdu which is close to LIS.  Renovation of the property was completed in September 2020.  M planned to move in this property with D had she been successful in her relocation application.

30.  Since M’s non-resident status prohibited her from working in Hong Kong, she joined a PRC company engaged in decoration business with a branch office in Shenzhen, Mainland China.  Her business partner handled the bulk of the work whilst she could only handle liaison work with clients online, given the fact that the Covid-19 pandemic prohibited her from travelling.  M has been staying in Hong Kong since around March 2020.  She felt sorry that her business partner had to handle the bulk of the work for almost 2 years.  She hoped to be able to go back for work in Mainland China.  She was confident that she could manage her work within a flexible schedule and at the same time be able to take good care of D.

31.  M agreed to bring D to Hong Kong for F to exercise access twice a year during school holidays.  She also agreed to set up video conference between F and D after the relocation during other days.  F could also visit D in Chengdu over the weekend if he so wished.

32.  Further, M’s parents in Chengdu would also assist her in taking care of D whenever their assistance was needed.  As a matter of fact, the maternal grandmother had looked after D for about 6 months shortly after D’s birth.   

Father’s (F’s) case and objections

33.  F filed his Affirmation on 15/9/2020[8] at the time when he issued the F’s Custody Summons[9].  I would call this a ‘composite” Affirmation since F had deposed to various other matters “in-one-go”.  This Affirmation contains the following headings :-

-   (A) Factual Background;

-   (B) Agreement regarding the Minor;

-   (C) Separation & Divorce;

-   (D) Wardship Proceedings;

-   (E) Interim Defined Access;

-   (F) Interim Travel Arrangements; and

-   (G) Conclusion.

34.  Within the heading (D), there was a sub-heading “The Minorshould remain in Hong Kong”[10] which contained F’s reasons of objection to M’s relocation application.  In a gist, F was contending that it is in D’s best interests to continue staying in Hong Kong for the following reasons :-

(a)  D grown up in Hong Kong.  D was attending AIS which is an international school in Hong Kong and she had her circle of friends and ways of life in Hong Kong[11];

(b)The current child care arrangement should continue (“the status quo” contention)[12];

(c)  D very much enjoyed the current care arrangement and extra-curricular activities.  D has a close relationship with F and the paternal grandmother[13];

(d)AIS is one of the best international schools in Hong Kong whereas LIS is not a good school at all.  D has been doing well at school and constantly praised by teachers.  LIS is not within the list of Top 100 International Schools in China published by Hurun[14];

(e)  M will be involved in various business interests and travelling (for work and leisure) upon her intended relocation to Chengdu.  Whenever M was free in Chengdu, she would play mah-jong instead of spending time looking after D[15];

(f)  By reason of her frequent travel, M often missed important school events[16];

(g)  D does not have close relationship with the maternal grandmother who suffered from serious depression and/or schizophrenia and has been admitted to hospital on a monthly basis[17];

(h)  M wanted to relocate to Chengdu for her own interests rather than for D’s best interests[18];

(i)  M is very prone to be influenced by friends and outsiders.  F believed that M was heavily influenced by her friend whose daughter was relocated from Hong Kong to Chengdu[19].

35.  At paragraph 18 of this Affirmation under the sub-heading “Agreement regarding the Minor”, F referred to an agreement having been reached with M that (i) D would be brought up in Hong Kong[20]; (ii) D would be taken care of by him, M and domestic helper[21]; and (iii) they would live in Hong Kong together as a family[22].

36.  At paragraphs 30 and 31 of this Affirmation under the sub-heading “Separation & Divorce”, F referred to the absence of any Court order over matters regarding D since the divorce under the DA had never went through any PRC Court.  It was only registered and recorded in the government department only[23].

37.  F then referred to one of his exhibits “SCHC-4” which is a 17-page legal opinion dated 7/9/2020 on the effect of the divorce as per the DA.

F said he would seek leave from the Court for such legal opinion be adduced as expert evidence for this trial.

Paternal Grandmother’s Evidence

38.  The paternal grandmother filed her Affirmation setting out her involvement in taking care of D in the past and at present.  She said whenever M was about to leave Hong Kong, M would ask F to ask her to take care of D[24]. Sometimes M or F would give her very short notice, such as one day before or even on the day of departure, thus causing her to have to change her plans in order to go to M’s place for taking care of D[25]. This had caused inconvenience to her as she still had to take care of her household and her husband.  She also felt M had been disrespectful to her and it was lack of gratitude of M[26].

39.  She also worried that once relocation was approved by the Court, M would sever all contacts between her and D.  Given the close relationship between D and herself and F, she said it would not be D’s best interests to stay away from Hong Kong forever[27].

Social Investigation Report (“SIR”)

40.  The SWO Miss Chan prepared the Social Investigation Report (“SIR”) dated 24/11/2020[28] in respect of which she adopted as her evidence in chief and maintained the recommendation therein at this trial. Although Miss Chan has been working in the Social Welfare Department for over 20 years, she confirmed that this was her first case on children relocation.

41.  In her Report, Miss Chan recommended (i) D to continue living and studying in Hong Kong; (ii) M to have sole custody, care and control over D; and (iii) F be given reasonable access[29]. 

International Social Investigation Report (“ISIR”)

42.  The ISIR dated 6/5/2021 was prepared Miss Chung (“Miss Chung”) who came to the following conclusion[30] :-

“43. M成都的住所有足夠的空間予D活動, 學校制度、校園環境、 對於學生的支援也是較為多元化的, 照顧方面, D從小與M一起生 活,外祖母在D的成長路上也一同參與, 對D的起居飲食、興趣愛 好甚有瞭解。經濟方面, M是建築公司的合夥人, 有穩定的收入和 額外的業務分紅, 外祖母亦無需M負擔, 暫時沒有經濟壓力。而M 的工作性質較為彈性, 無需天天往公司上班, 會有更多的時間留在 家中陪伴照顧D, 加上D對M的依賴及對外祖母的喜愛, 相信一  起生活對孩子穩定地成長也會有很大幫助。”

43.  On M’s future child care arrangement, Miss Chung at paragraphs 39 to 42 of the ISIR[31] said :-

“39. M表示希望可以帶D回成都生活, 自己的工作時間是相當 彈性, 無需固定在公司上班, 有時會在裝修現場, 有時會在公司, 對於照顧D 的時間還是比較充足的, 而外祖母主要協助生活起居 的照顧, 管教孩子方面主要以自己為主, M表示, 隔代的長輩對小 朋友都會比較寵溺, 自己會在當中慢慢協調。

40. 外祖母表示若M及D回成都生活, 自己會盡心盡力一起照 顧D, 一切以D為主, 平時D需要上學, 由於新居離學校比較近, 故會在新居住, 但週末時會帶D回老家, 因老家的空氣比較好, 也 可以邀請其他的小夥伴與D 一起玩耍。

41. 外祖母表示雖然自己與外祖父已經離婚, 但外祖父對M 及D 也是十分關心, 平時大家也會一起相處, 吃飯或者去其他地 方遊玩, 若M 及D 回到成都, 生活上有任何困難, 也可以向外祖 父㝷求幫助。

42. 外祖母表示在末來的生活安排暫時未預見困難, 因照顧 D 自己之前一直有經歷, 與D關係也很好, 即使之後會有新的困難,  會互相和家人溝通, 慢慢磨合。”

Discussion

44.  As said at the beginning of this Decision, it is common ground that neither M nor F was pursuing or defending this application with the ulterior motive or selfishness to single out or remove the other parent from the life of D.  The only question that need to be decided by the Court at this trial, as M’s Counsel Miss Yu rightly set out in her Closing Submissions[32], was that whether it was in D’s best interests to continue staying in Hong Kong or for D to leave Hong Kong and go with M to Chengdu, Mainland China. 

45.  As revealed by the SWO Miss Chan in her report, the day to day primary care and control (日常生活起居) of D, whether it was in the past or at present, rested with M.  Nowhere in her report did she mention about F’s role in the day to day primary care and control (日常生活起居) of D except that F had attended to D’s study and educational needs, such as helping her homework, checking school notices, liaison with school teachers, and attending parents/teachers meetings.  

46.  At paragraphs 15 and 19 of the SIR, Miss Chan said : -

“當事兒童過往的生活照顧及學習安排

15…….在家傭協助下, M是D的主要照顧者, 外祖母亦偶爾來港探望及陪伴。

”當事兒童現時的生活照顧及學習安排

19…… 一直以來, D的生活起居由M照顧, 家傭除了負責家務外, 亦時有協助照顧及接送D上學及興趣班。”

47.  Under the terms of the DA and after M and D came to Hong Kong in 2015, M was entrusted with the day to day care and control of D. When F moved out from his own property in Wellington street leaving behind M and D (where they are currently still living) without bringing along D with him or placing D at the paternal grandmother’s residence in Caine Road are hard facts that F accepted M was suitable to be D’s primary carer.

48.  F’s Custody Summons was issued belatedly on 15/9/2020 in these proceedings after M’s relocation application was filed.  F’s Custody Summons has yet to be fully argued.  The filing of such Summons by F would not in any way displace the historic and existing fact that M was entrusted by F with the day to day primary carer of D.

49.  Given such factual background, it is bizarre for F to now raise his contention that the “status quo” would be uprooted if relocation was granted.  It is clear that within F’s mind, the definition of “status quo” was restrictively confined to the concept of locality without paying heed to the concept of day to day primary care and control of D by M.

50.  If relocation was not granted which F was now saying should be the case, and further that M was to go back to Chengdu by herself which is likely and probable given her non-resident status in Hong Kong prohibiting her from taking up any employment, the “status quo” within the concept of day to day primary care and control of D would definitely be uprooted as M would no longer be staying in Hong Kong with D.

51.  It is fair to say that in all relocation cases, if the concept of locality was the theme of “status quo”, there was bound to be uprooting it if relocation was successful.  This should not be the case.  That said, I believe in relocation cases, it would be just and fair that the concept of day to day primary care and control of the child in question should take precedence over the concept of locality.  Apart from the concept of primary care and control and locality, there was no exhaustive list of other factors for consideration of “status quo” in relocation cases.  I would say the “welfare checklist” may provide some guidance on this aspect.  Anyway, it is my view that the day to day primary care and control does play a significant part of the consideration of “status quo” especially when the child in question is of young age.

52.  Miss Chan compiled the SIR without the benefit of reading the ISIR or any other International Social Investigation Report.  The ISIR only came into the scene after her SIR. Surprisingly, Miss Chan was able to come up with her recommendation against relocation. 

53.  For all relocation cases, ISIR is a piece of important evidence that the Social Welfare Officer handling the relocation case locally should be expected to consider before coming to any conclusive views on the matter. The ISIR would provide the local case officer with material information which he or she would not otherwise know unless informed by the parents themselves.

54.  Given the parents’ stance in contested relocation cases, it is not uncommon for those material information in the other jurisdiction where relocation was sought be twisted, exaggerated or adversely commented by the opposing parent.  Hence, the ISIR was there to ensure that all the material information in the other jurisdiction are true and accurate, enabling the local case officer to review, analyse, compare and comment on the pros and cons for relocation, constantly with the best interests of the child in mind.

55.  Upon cross examination, Miss Chan frankly and fairly agreed that when compiling the SIR, she did not investigate into any detail of the proposed school arrangement at LIS for D in Chengdu.  Frankly, she was unable to provide any comments on M’s proposed school arrangement nor was she able to make any comparison between LIS in Chengdu and AIS in Hong Kong where D was now attending.

56.  That said, it is unclear how Miss Chan would be able to make the following assertive statement at paragraph 58 of her SIR[33] :-

“58. 儘管M已物色成都的國際學校, 但現時D學位安排未算完全穩妥。倘若D遷離並在成都上學, 她或許可克服語言環境的轉變, 但學習形式、師生比例、課堂流程等資訊欠奉, 未能讓D有足夠準備, 這樣的轉校安排並不理想。 M對國內的國際學校教學理念、實際授課模式等不算廣泛認識及掌握, 溝通聯絡上也是以英語為主, 因此, 對D的在學安排為F和家人帶來重大挑戰。”

57.  Further, Miss Chan also made the following statement at paragraph 23 of the SIR :-

“23. 根據香港澳洲國際學校2020年第一學期報告, D的表現令人滿意。學校老師就D的學習態度給予正面評價, 認為她在網上授課或實體課堂都能積極投入、表現自信、樂於將她的觀察與老師分享。她時常透過書寫及繪畫表達自己的想法。老師認為D 有禮貌和勤力用功, 在首個學期表現已展現一個美好的開始, 並期待她繼續進步。”

58.  Miss Chan had not put down in her SIR the actual words of comments made or remarks given by the class teacher in D’s Term 1 school report (“第一學期報告”).  It is unclear whether Miss Chan had personally read the comments or remarks herself or that she was simply told by the class teacher and then she made a record of it in her SIR.  Nor did Miss Chan put down the actual marks, points or grades recorded in D’s school report in the SIR.  In my view, the lack of transcription of the comments or remarks from the school report into the SIR might suggest that Miss Chan did not read the school report herself.  This is not satisfactory.  

59.  Upon further cross examination, Miss Chan also agreed that she did not ask M in any detail as to her planning of work schedule when she was back to Chengdu.  Oddly, Miss Chan somehow was able to put down in her SIR the following as her views on M’s ability to take care of D when she was back to Chengdu :-

“M 亦可能會追趕工作進度而未能維持現時可給予對D的照顧, 這令人擔心D的情感支援不整全下的身心狀況[34]”.

60.  Such observation by Miss Chan on M, in my view, was speculative rather than instructive. The words “亦可能”fully support my views on Miss Chan’s statement to be a speculative one.

61.  In the same paragraph, Miss Chan went further on to say :-

“倘若D現階段隨M返回成都, D得到非同住父親的親子交往、關注和支援變得不再直接和緊密[35]”.

62.  It is unclear as to how Miss Chan could form such a definitive view that the contact of F over D would no longer be direct and close if M was to bring D back to Chengdu.  Speaking geographically, this might be correct.  However, given the advanced technology nowadays, it might not necessarily be the case.  As a matter of fact, there was bound to be some changes in all successful relocation cases. In my view, such observation or comment of Miss Chan was no more than speaking for the obvious.

63.  In my view, it is over-simplistic for Miss Chan to pre-judge the degree of “parent-child” intimacy, contact or relationship simply by looking at how far the parent and the child are living apart without considering in more detail the actual access arrangement or planning after relocation proposed by the applicant parent. Whether it would be workable and feasible or that it would diminish the child’s right of contacting the other parent must be carefully considered.

64.  As a matter of fact, there was no detail analysis in the SIR of the access arrangement or planning after relocation proposed by M and the likelihood of implementation by the parties before forming the assertive views that the F and D relationship would no longer be direct and close. Again, this is speculative, unfair and unsatisfactory.

65.  On the other hand, I noticed that nowhere in Miss Chan’s SIR had she set out any child care plan or arrangement proposed by F in the event that relocation was refused.  Under the heading of “答辯人對遷離計劃及探視意見[36]”, apart from setting out the differences between F and M over D’s education and schooling in the past, and also their disputes over access, there was no investigation as to who would be the person entrusted with the primary day to day care and control of D if M’s application was unsuccessful.  Would the paternal grandmother move to live with D ?  Or would D move to live at paternal grandmother’s residence ?  Whether F would move to live with D ?  If so, where would F and D live ?  Any arrangement as to the domestic helper ?

66.  Given the factual background of this case, all the above questions are extremely important since the “status-quo” of day to day primary care and control[37] of D would definitely be uprooted in the absence of M. 

67.  Miss Chan in her investigation revealed that F having an established relationship with her girlfriend but without any marriage plan yet.  Quoting the words used in the SIR, Miss Chan at paragraph 10 said :-

“10. ……..他目前有固定女朋友,但沒有再婚的計劃。”

68.  The investigation then stopped there.  It was unclear whether D had met F’s girlfriend before.  It was also unclear whether the girlfriend knew F was divorced and has a tender year daughter D whom he would have to take care of if M’s relocation failed.  Such information was missing but was important to assist the Court to consider whether there was any back-up support of F in addition to the paternal grandmother; with or without the domestic helper also assisting.

69.  In the Court of Appeal decision of Naziya Aslam v Rafaqai Ali(Custody and Removal) [2009] HKFLR 294 where it was said :

“29. In this case, the Social Welfare Officer appears to have taken the decision to make a recommendation in circumstances where, in my view, she clearly should not have done so. In the first place, it is clear from paragraph 40 of the first report, that the Social Welfare officer had only the most basic communication with the sisters…….

30. In the second place, the Social Welfare officer saw fit to express a recommendation despite the fact that she was aware that an International Social Service welfare report was being prepared and that she had not seen it.  In the light of these two factors, which would appear to be highly important for the welfare of the children, the Social Welfare officer was to a large extent shooting in the dark.  Her recommendation must, in those circumstances, be highly suspect…….”

70.  Further, at paragraph 47 of the same Judgment, it was said :-

“47. As for the position of social welfare officers, they are the eyes and ears of the judge outside the courtroom and often the observations contained in their reports are of much value. However, I agree with the learned Vice-President in cautioning against the provision of recommendations as a matter of course, particularly if there is insufficient material on which recommendation can safely be made.

48. For instance, the 1st report was prepared after an international social welfare report had been sought but was not yet available. Nevertheless, the 1^st report contained a recommendation that the father be granted custody care and control on the ground that there was “greater uncertainty for the mother to fully implement her childcare plan.” When the international social welfare report did become available, it showed that there were no grounds for uncertainty and that the children would be safe and well cared for by their mother in England.

49. In oral examination on this point, the social welfare officer said candidly that in the absence of those uncertainties, it was a “difficult decision to make the recommendation to your Lord[ship] about the custody of the children”. Given that situation, the social welfare officer should simply have realized that she had done everything that she could have in providing materials to the court, refrained from making a recommendation that she had difficulty with and left the decision to the judge.”

71.  To be fair to Miss Chan, she was not informed by the parties in advance prior to the preparation of the SIR or even after she had prepared the SIR in November 2020. As said, directions to call for ISIR only came in at the Pre-trial hearing before Deputy Judge Thelma Kwan two months later in January 2021[38], and the learned Judge also fixed the trial dates there and then.

72.  Miss Chan should not be harshly criticised for coming up with her recommendation when she did not have the benefit of reading the ISIR< which only came in afterwards.  However, her confirmation at the time of< trial (emphasisadded) of her earlier recommendation in the SIR without paying heed to the contents of the ISIR showed the lack of full and complete consideration of all material information that was required in a relocation case.  This made her investigation “one-sided and incomplete” (“單一方面及欠完整”).  This is unsatisfactory.

73.  Given careful consideration to all the above, I must say that the recommendation by Miss Chan in her SIR, insofar as the question of relocation is concerned, was arrived at without full and complete investigation and consideration of all material information including the ISIR.  Hence, the recommendation in the SIR, insofar as relocation is concerned, could not be accepted by the Court.

74.  The ISIR supports relocation.

75.  F’s Counsel in her written submissions said it was unclear whether the ISIR case officer, namely, Miss Chung, had actually visited M’s property in Chengdu or the maternal grandmother’s residence also in Chengdu.  In the ISIR, it could be seen the words “工作員” was used throughout and that it could be that the case officer Miss Chung just compiled the ISIR relying upon information supplied to her[39] by those “工作員”.

76.  With respect, such submission is a non-starter.  Had F been sceptical about the ISIR in whatever aspects, may it be the process or scope of investigation or the contents of the ISIR, it is always open for F to call Miss Chung to testify and be cross examined at the trial.  This is important when the ISIR supports relocation, which was against F’s wishes and also not in consonance with SWO Miss Chan’s recommendation in the SIR. For reasons unknown, Miss Chung had not been called to testify by F.

77.  Oddly, F’s Counsel Miss Choy in her Closing Submissions[40] said the ISIR case officer Miss Chung was not called to be “cross-examined”. It was unclear F’s Counsel expected which party to call Miss Chung.  The ISIR was called by the Court and such report could be said to be the “eyes and ears” of the Court.  It was always open for the parties to seek directions for the ISIR case officer to testify at trial.  If it was F who wished to challenge Miss Chung’s ISIR, whereas M had no issue about the ISIR, why F did not seek directions for Miss Chung to attend the trial for his cross examination testing her veracities but leave it at the end of the Closing Submissions on the accuracy of the ISIR ?

78.  I have taken time to go through the 34-page ISIR and all the photographs[41] accompanied with it. I am convinced that the ISIR investigation was thorough and in great detail.  I am satisfied that the living condition and environment of M’s property in Chengdu where she had planned to live there with D on successful relocation, when compared with the Wellington street property where M and D are living in Hong Kong, was far more spacious and better.

79.  Besides, ISIR’s investigation of the international school LIS, which M had enlisted D for studying if D could be back to Chengdu, was also thorough and in detail.  I am satisfied that the LIS international school was suitable for D.  The only issue that remain may well be availability on school placement if the relocation is successful.

Any motivation or selfishness to exclude the other parent from the lives of D ?

80.  It was common ground that there was no such motivation or selfishness either on the part of F or M.  It was only that F believed M’s relocation was taken out for her personal interests rather than for the best interests of D.  F’s opposition originated from his concern over D’s best interests in that D should continue to stay in Hong Kong.  F has no strong views as to M’s staying or leaving Hong Kong.

Was M’s relocation realistic, practical and well planned ?

81.  The practical difficulty that lies with M was her non-resident status in Hong Kong which prohibited her from taking up any kind of employment.  Although the DA contained provisions for monthly maintenance of either HK$8,000 or HK$16,000 to be provided by F for D depending upon whether D was in Hong Kong or in Mainland China in any particular month, it was not the case that F was paying those sums to M monthly and regularly.  What had actually happened was that F would settle all D’s maintenance and expenses which was well in excess of the amount stated in the DA.  According to F, it was around HK$25,000 a month or about.  This was undisputed by M.

82.  Under the DA, M would not seek any maintenance or carer’s allowance for herself from F notwithstanding that she was once the wife and had been the primary carer of D throughout.  F was only 28 years of age and her maiden family was in Chengdu, Mainland China.  Realistically and understandably, M would need to work for supporting herself no matter she stays in Hong Kong or lives in Mainland China. 

83.  M in her evidence in chief said if relocation was not granted, she would continue to take care of D in Hong Kong.  She frankly admitted that she could not stay in Hong Kong for long period of time and that she would have to travel in and out Hong Kong for work.  Even so, she said the importance of taking care of D outweigh any inconvenience to her for having to travel in and out Hong Kong from time to time.  M concluded by saying that any adverse effect (不良影響) upon her would not be as much as the adverse effect casted upon D when she was not around to take care of D in Hong Kong.

84.  M has been working for a decoration company in Mainland China since January/February 2020.  Her work duties required her to attend

different sites to monitor work progress.  Due to the Covid-19 pandemic, she was not able to travel back to Mainland China ever since she returned to Hong Kong in March 2020.  During this period of time, which was over a year by now, her business partner in Shenzhen handled most of her work whilst she could only handle client liaison work in Hong Kong.  M frankly admitted that there was no perfection on child care planning if relocation failed and that she has to stay in Hong Kong to take care of D and to travel for work.  However and in any event, she would strive to do the best she could to take care of D.

85.  At the end of her evidence in chief, she said if she could go back to Chengdu with D and work there, she would be able to take good care of D with suitable arrangement on her work schedules.  For instance, she would arrange working in the morning whilst D was at school and pick up D after her school in the afternoon. 

86.  M also told the Court her plan for arranging interested groups and/or extra-curricular activities; say, horse-riding, swimming, golf and musical classes for D and how to fit them in the school hours of LIS.  She said the school hours in Chengdu usually finish at 3:30 p.m. whereas in AIS in Hong Kong, the school finishes at 2:40 p.m.

87.  In the case of Re F and H (Children: Relocation) [2008] 2 FLR 1667 where Thorpe LJ commented upon whether a relocation plan is realistic or practical said :-

“….. the bar as to practicalities that must be jumped by the relocation application is set at a wide variety of heights depending on the facts and circumstances of the case. In this commonplace category of cross- border family creation, where the primary carer is returning to a completely familiar environment, the bar is obviously set considerably lower than in the case of an applicant who, in pursuant of some dream

or ambitions, is proposing to take the children to an unknown and untried environment. The bar is set particularly low where the primary carer is returning to the completely familiar home life after such a brief absence. In this instance the mother had only bernm nm ythe country for 6 years in total.”  

88.  Further, in the later case of SMM v TWM (Child: Relocation) [2010] 4 HKLRD 37, where Hartmann JA (as he then was) in the Court of Appeal took the view that as the mother in that case was still in Hong Kong, the plan was bound to contain uncertainties.  At paragraphs 82 to 84 of the Judgment where it was said :-

“82. For my part, the need for a set of rational relocation proposals is to ensure that the parent is not simply seeking to flee without concern for practicalities and thereby putting the interests of the child at risk. In the present case, when matters are considered in the round, it is apparent, I believe, that the mother is not simply seeking to flee without heed of practicality. She is seeking to relocate to that part of the United States from which both she and her husband originate, where both have families, where both grew up. In that respect, she is seeking to return ‘home’, to the shelter and care of both her extended family and, in so far as may be necessary in the interests of the child, to the shelter and care of the father’s extended family. There is no suggestion that she will be without funds. In respect of capital, that is not yet available to her for the purpose of buying a home, not until court proceedings are finalised. But the mother does have a plan to stay with her own mother, initially ` at least whilst she is looking for employment. There are schools in the area which are able to take the child even if the child has not yet been booked into one of them. They are educational institutions of different complexions but there is no suggestion that the mother, in consultation with the father, will not be able to choose one that is appropriate. In this regard it is to be remembered that both parents are highly qualified and clearly understand the importance of education. If the mother finds a job at some distance it may be necessary to move the child but that of itself is not critical. There is nothing to suggest that the child is not an average robustness and will not adjust.

83. The mother’s relocation proposals, it appears to me, are entirely acceptable. She will be returning ‘home’ in the sense that I have descended. Initially, while she seeks employment, she will be staying with family. During that time, the child will have schooling available as well as the benefit of spending time with extended family. When the mother has found employment, if it is necessary to move to a new place, there is no reason to think that she will not do so in an entirely rational and planned manner, making sure that the child’s best interests are secured. There is nothing in the mother’s history to suggest that she acts with blatant irresponsibility in respect of the child.

84. In respect of relocation applications generally, there will, of course, be many occasions when the court is obliged to look carefully to the specific details of a plan to relocate and a lack of specific detail will be fatal. Each case is unique, each must be determined according to its own circumstances. In the present case, however, looking to all matters in the round, including the proven character of the mother as a responsible parent, I believe that the judge regrettably fell into error in looking too much to the lack of detail and too little to the broader imperatives which show the plan to be entirely understandable, rational and one that will protect the interests of the child.”   

89.  In my earlier decision on litigation funding handed down on 18/6/2021, I have outlined M’s financial ability which I do not repeat here.  Suffice is to say that there was not much change in M’s employment.  I believe M has sufficient earning capacity, means and resources and, if so required, she is capable of supporting D in Mainland China.  Further, the living costs and expenses in Mainland China are noted to be lower than in Hong Kong.  This had already been reflected by the terms of the DA for the fact that the maintenance sum for D when she was living in Mainland China was just half of that in Hong Kong.

90.  In the round, M’s testimonies were firm and coherent, uncontroverted and unshaken by cross examination.  With the benefit of observing M’s demeanour whilst testifying, I find M honest, confidence and credible.  M answered all questions, whether they came from cross examination or the Court, boldly, directly, and confidently without any moment of pause, hesitation or reservation.  It was not the sort of repeating  rehearsed answers from memory in order to fit in her case or to please the Court. 

91.  I have repeatedly reminded myself that the ultimate consideration should be the best interests of the child D, rather than the convenience, preference or interests of the mother M on this relocation application.  On the undisputed evidence, D had once lived in Chengdu for about 6 months after birth and during that time she was looked after by the maternal grandmother whilst M was recovering from delivery.  Upon return to Hong Kong, there had been various occasions when M took D for leisure trips prior to the Covid-19 pandemic lock-down, including :-

(a)  In March 2018 to Yunan, China;

(b)In August 2018 to Shanghai, China;

(c)  In May 2019 to Sanya, China;

(d)In August 2019 to Tokyo and Nagoya, Japan (Disneyland);

(e)  In December 2019 to Pengzhou and Chongqing, China[42]

92.  Besides, in the past, M had also taken D to Chengdu during school holidays.  M produced some daily life photographs[43] and also  photographs taken in Chengdu[44] where it could be seen the sweetness, joy and happiness of D or between M and D.

93.  There were also photographs from F’s evidence showing D’s life in Hong Kong with F and the paternal grandmother[45]. Amongst F’s photographs, I noticed there was a photograph showing D together with F and M which appeared to be taken at D’s 6^th birthday (by counting the number of candles on the cake in the photograph)[46].  From the parties’ posture, it could be seen that D sat upon M’s left leg, leaned at M’s face, with M’s left arm grasped around D warm-heartedly.  F stood next to M seemingly holding the plastic knife for cutting the birthday cake.  The intimacy between M and D could be readily seen.

94.  M had lived in Hong Kong for just about or slightly less than 6 years up until this trial in 2021, even before discounting her periods of absence for work or leisure prior to the lock-down caused by the Covid-19

pandemic.  Hence, quoting the words of Hartmann JA (as he then was) in the SMM v TWM case (supra), it would be fair to say that M was just returning to her “home”.  Chengdu has been M’s hometown.  On the other hand, D could not be said to be leaving Hong Kong for a place that she had never been there before.

95.  Considering all her evidence in the round, I am satisfied that M’s relocation was a realistic one, which was practical and also well planned.  It was not a step to flee with D to Chengdu without heed of practicality or planning.

Does F have any plan for D if M failed in her application and M just left Hong Kong by herself ?                                       

96.  Throughout F’s “composite” Affirmation and his testimonies at trial, F had not provided the Court with any solid and well-planned child care arrangement if M’s relocation failed and that M chooses to return to Chengdu by herself.

97.  F could not take it for granted or just assumed that M would indefinitely (emphasis added) stay in Hong Kong to take care of D although M had so wished.  In light of F’s Custody Summons having been issued but has yet to be heard and decided, it was odd for F not having in place any child care arrangement for D when opposing this relocation application.

98.  Although I have also reminded myself that it was for M to prove her case that the relocation was in D’s best interests, the Court would also have to consider the child care arrangement of F, if any.

99.  That said, it appeared that F’s child care arrangement was simply to keep his so-called “status-quo” by having the paternal grandmother and domestic helper to assist him to take care of D whilst he was at work.  However, F did not even mention in his “composite” Affirmation or oral testimonies as to where D would be living, whether moving to live at the paternal grandmother’s residence at Caine Road or D to continue staying at the Wellington street residence just with the domestic helper ?  Given F’s case was that he had also been taking care of D together with M, would he himself be moving to stay with D at the Wellington street property if M had left Hong Kong ?  Or he would continue living by himself at a rented place, which was at Pokfulam Road at the time of this trial, remain a mystery.

100.  Since F was legally represented throughout these proceedings with the assistance of Counsel, I believe such important information could not have been missed out. The only probable reason or reasonable inference that could be drawn was that F did not have any solid and well-planned child care arrangement or that he was not as mindful as M over D’s care arrangement.

101.  It was unclear what F was aiming for when he referred to the PRC legal opinion he obtained in respect of the DA[47] and said he would seek leave to adduce them as expert evidence.  It turned out that no such application had been made.

102.  According to F, he hide away from his mother his separation and divorce with M until his mother learned it in June 2020 when he started the Wardship proceedings[48].  F feared his mother would not be able to accept it as she was a traditional Chinese mother.  This caused concern to the Court as to whether the paternal grandmother, being a traditional mother-in-law, would be willing to provide the same degree of care and affection over D if M’s relocation application fails.

103.  The paternal grandmother’s affirmation[49] was dated 10/9/2020, that is, just around 3 months after she learnt about the separation and divorce between F and M and the Wardship proceedings.  At trial, which was a year later, she confirmed and adopted her affirmation as her evidence in chief.  The following paragraphs of her Affirmation with those key words underlined, on a plain reading, showed the relationship between her and M could not be harmonious (婆媳關係), which I am prepared to say it was not uncommon between traditional Chinese mother-in-law and daughter-in-law, had caused those concern of the Court just mentioned.

“6. But whenever she was to leave Hong Kong, she would inform theRespondent and ask the Respondent to ask me (emphasis added) to take care of the Minor whenever she was away.

7. Sometimes, she would give me or the Respondent very shortnotice (emphasis added), such as one day before or even on the day she flew away, and I often had to immediately change myplans (emphasis added) in order to go to their home on Wellington Street (“Wellington Property”) to take care of the Minor.

8. Although I very much loved (and still do) spending time with the Minor, such arrangements – especially when I was only given very short notice – often caused inconvenience to me (emphasisadded). While I did not have to work, I still had to take care of the household and my husband.

9. Moreover, I felt very disrespected by the Applicant (emphasisadded) by reason of her short notices and lack of gratitude. No matter how willing I was in taking care of the Minor, it does not mean that what I did should be taken for granted by the Applicantin the way she did (emphasis added).”

104.  Even though those grievances of the paternal grandmother may be understandable or might be justifiably expressed (but there is no such finding by this Court), it remains a serious concern whether those grievances would hamper the degree of the paternal grandmother’s love and affection over D especially when M was not around.

105.  Further, it was clear from the paternal grandmother’s evidence that she needed to take care of her husband, that is the paternal grandfather. That said, it was unclear from F’s evidence, Miss Chan’s SIR or even the paternal grandmother’s own evidence that if she was to take care of D without M around, would she be able to cope with taking care of D and at the same time also looking after her husband, even leaving aside the household chores which she also needed to attend to.  

The Welfare Checklist

106.  As decided by Hon Poon J (as he then was) decided in H v N [2012] 5 HKLRD 498, when deciding upon the best interests of a minor, the

Court may refer to the factors listed within the “welfare checklist” under the English Children Act 1989 and may cherry pick only those factors relevant to the case and which may be of value and assistance.

Wishes and feelings of D

107.  D is now 7 years of age.  She was capable of expressing her wishes and feelings to the SWO Miss Chan.  However, SWO Miss Chan concluded that although D understood the position, she was avoiding the topic and it was not easy for D to express her feelings.

108.  When Miss Chan was going to schedule a 2^nd interview with D, D gave her the reply of “No Need” and also said “I want to go back toChengdu”. During the 2^nd interview with D at the paternal grandmother’s residence, D did not talk much.  At a later interview at the Centre, D drew herself and M on the picture drawn by SWO Miss Chan and then wrote down the words “D and M” on the picture[50].

109.  At paragraph 44 of the SIR under the heading of “當事兒童的意願” where Miss Chan said :-

“44. ……..綜觀她的表現和反應, D 明白父母因為她的事而況, 可是她不容易表達自己的心情, 甚至試著轉移話題。”  

110.  Judging from the above, it appeared more probable than not that D wished to stay with M rather than with F.  In the absence of further investigation from Miss Chan or assistance from other expert, I could only arrive at such views upon an objective assessment of D’s words written and behaviour narrated by Miss Chan.

Child’s physical, emotional and educational needs

111.  I find D’s educational needs was well planned and catered for by M.  D’s physical and emotional needs also tips in favour of M.

112.  D would be turning to puberty soon.  It is in D’s best interests to receive guidance arising from puberty from the feminine sex and that M would be best fitted with such task.

Nature of relationship of D with the parents

113.  D has been living with M, the primary carer, for most of the time since they came to Hong Kong in 2015.  Although during those years after the parties’ separation in 2017, F had been visiting D from time to time to guide D on her studies, homework, liaison with schools and teachers, I believe this factor of relationship with parents still tips in favour of M given the amount of time which F stayed with D at the Wellington street property was comparatively shorter than M.

Likely of effect of change in D’s circumstances

114.  Given the fact that this is a relocation case, the likely effect of change would normally be significant upon a successful application.

115.  In this case, however, it was the primary carer M who was the applicant parent seeking relocation with D to M’s hometown, I believe any effect of change in D’s circumstances could be readily managed and easily tackled by M.

Child’s age, maturity, sex, social and cultural background

116.  D is of feminine sex at the age of 7.  She is sufficiently mature to understand the parents’ conflict over her case as said by Miss Chan in her SIR[51].

Attitude of the child and the responsibilities of parenthood of the parents

117.  Overall speaking, D’s attitude to follow M to Chengdu was clear as can be seen from her answers to the SWO Miss Chan. 

118.  M’s responsibilities of parenthood over D exceeds F’s.  This could easily be seen from F’s response to M’s messages via WeChat[52] on some information on D’s schooling upon relocation.  When M sent over those information to F, she was met with F’s responses such as “ok, willsee tomorrow, today is racing day”[53] (好,明天看,今天跑馬) and “watchinghorses” [54](在看馬).  There is no dispute that F is a full member of the Hong Kong Jockey Club and he was also one of the horse owner jointly with others.

Any harm which the Child has suffered or is at risk of suffering

119.  There was no evidence on such factor.

Any family violence involving the Child or a member of the Child’s family

120.  There was no evidence on such factor.

How capable each of the Child’s parents is of meeting the Child’s needs

121.  Since F was fluent in reading and spoken English and D has been studying in the international school AIS, or would be studying in another international school LIS in Chengdu if relocation was successful, F would be more capable in meeting D’s educational and study needs.

The practical difficulty and expenses of a Child having contact with a parent

122.  No doubt it would be difficult for D to contact F upon successful relocation.  However, with the advanced technology nowadays, the nicety of physical access could be replaced by other means of access, such as zoom, video conferencing, WeChat or through face-book etc.

Any other fact or circumstances that the Court thinks are relevant

123.  The ability of the paternal grandmother to guide D through her studies is a relevant factor.  F commented upon M’s English standard may not be able to help D on her studies and to communicate with schools and teachers.  However, the same applies to the paternal grandmother who apparently does not read and write English.  For otherwise, she would not require translation of her affirmation[55]. She also signed her Affirmation in Chinese.

124.  As F was employed full time as a Director of a listed stock trading company in Hong Kong, he would definitely need the paternal grandmother, if not the domestic helper also, to be the day to day carer of D whilst he was at work.

125.  Having said, I do not consider the ability of D’s carer, whether it was M (if relocation succeeds) or the paternal grandmother (if relocation fails), to speak and write English is any gained advantage when considering the best interests of D.

126.  The other factor which is of relevance is how much time each day would F actually or likely to be able to spend with D remains unclear.  As said in paragraph 99 of this Judgment, there was no evidence as to whether F would live with D in the event that M would leave Hong Kong if her relocation fails.   

What would be the impact on M of a refusal of her application?

127.  As a PRC citizen without right of abode or residency status in Hong Kong, M need to renew her visa from time to time in order to continue her stay to take care D.  F and M had separated and, under the DA, divorced.

128.  F in his “composite” Affirmation exhibited a 17-page legal opinion on the effect of the DA.  In the absence of leave of the Court, such document could not be considered or accepted as expert evidence.  Further, F had never disputed the validity of the DA anywhere in his evidence, whether in this application or when he contested M’s litigation funding application earlier, or had he provided any background information or explanation for entering into the DA as opposed to filing a divorce, whether in Hong Kong or in Mainland China.

129.  The DA was produced by M as her exhibit “ZFY-5”[56] to establish her status of having divorced with F.  Had F wanted to dispute the fact of divorce or the validity of the DA, he bears the burden of proving it by admissible evidence (emphasis added) and not by producing his exhibit his “SCHC-4”, the admissibility of which requires the leave of the Court.  Hence, M is no longer the wife of F continues to remain as a fact.  Accordingly, M requires renewal of visa to stay in Hong Kong to take care of D if relocation fails is a must.

130.  Taking into account of M’s age is only 28, I believe the impact on M is significant if her relocation fails.  Having said, I have again reminded myself that such impact is only one of the consideration under the Payne guidelines.  It should not be determinative or in any way a conclusive factor in the fact-finding exercise for D’s best interests.

Parties’ respective contentions

131.  What is now remain is for me to run through the parties’ respective contentions, adopting the numbering in the order of sequence which I have outlined in the earlier part of this Judgment[57].

Mother’s (M’s)

132.  On paragraph 26 (a), I agree with M.  The prohibition on M to seek employment in Hong Kong is a valid ground for seeking relocation although this must not dictate the best interests of D in the overall consideration.

133.  On paragraph 26 (b), given the latest social political situation since implementation of the National Security Laws, M’s concern no longer exists.  This is no longer a valid ground for seeking relocation.

134.  On paragraph 26 (c), the unhappy experience of D for facing school interviews and early school hours that had happened in the past do not seem to be recurring in the future.  The Court should not be the forum for making comparison of the education system between different jurisdictions.  Given D’s age, it is pre-mature to judge whether the education system in Hong Kong caused tremendous stress or not upon D.  This is not a valid ground for seeking relocation.

135.  On paragraph 26 (d), I agree with M.  It is always better for children to be assimilated to the culture and environment where he or she lives and educates as early as possible.

136.  D was at the age of 7 at the time of trial and turning to 7 ½ next month.  I noticed Miss Chan at her conclusion and recommendation in her SIR said :-

“56. 就D的成長和發展需要,她從熟悉, 穩定和可預測的環境學習智識和建立自信及安全感。

57. ……….

58. ……….

59. 就兒童的意願而言, D 明白這是一個重要的決定。因著母女二人親近, 她雖然只有6歲, 但對M 的心事有所明瞭。D與F的感情也是不俗, 所以她不容易表達自已的意見。面對父母雙方各自的改變和預視日後的需要, 要是她作出抉擇, 也令她產生一定的不安與困擾, 因此, 能夠繼續讓D維持目前的生活照顧及教育學習安排讓她能安頓下來, 並投入她的學習; 專注自己的成長。這才是符合她的最佳利益的。”

137.  The words “穩定” and “安頓下來”manifest the importance of stability for D in order to focus upon her studies and her way forward.  According to Miss Chan, stability would also alleviate any uncertainties and perplexity upon D caused by her parents’ conflicts.

138.  As a bi-lingual judge, from my reading of paragraph 59 of her SIR, Miss Chan opined that by keeping D’s present care and control with M, and also her present education in Hong Kong AIS, it could enable D to settle in and focus upon her studies and growing needs so that her best interests could be served.  There is, however, a lacuna in such recommendation.

139.  Given this is a relocation case taken out by M, Miss Chan should have, but unfortunately she had not, told us why D’s best interests could not be served if D’s care and control continue to rest upon M (as she

had so recommended in the SIR) but only changing D’s education from AIS in Hong Kong to LIS in Chengdu.  In my decision, this is not difficult to understand if one recalls that Miss Chan admitted during examination by M’s Counsel Miss Yu that she had not investigated into the LIS proposed by M.  This supported my finding that Miss Chan’s investigation was “one-sided and incomplete” (“單一方面及欠完整”)[58].

Father’s (F’s)

140.  On paragraph 34 (a), it was a mere description of the state of affairs at present.  This was not an acceptable ground of contention.

141.  On paragraph 34 (b), I have set out my views and decision on F’s “status quo” contention earlier[59] which I do not repeat here.  Suffice is to say that the contention of “status quo”, restrictively defined by F, was not accepted as a ground of contention.

142.  On paragraph 34 (c), it contains no more than F’s subjective views and perception which was self-serving and insufficient to constitute an acceptable ground of contention.

143.  On paragraph 34 (d), it was unclear as to how F was able to comment that LIS was not a good school simply by referring to the Top 100 international school list in China published by Hurun where LIS was not within the list.  Furthermore, F had not been able to convince the Court that

the said list is a commendable one. This was not accepted as a ground of contention.

144.  On paragraph 34 (e), F was not able to rebut M’s child care plan of taking care of D whilst she would also involve in her business ventures was not possible.  To the very least, F himself had not been able to come up with any solid and well planned child arrangement either.  F’s other contention of M playing mah-jong whilst in Chengdu was frankly admitted by M but that was only for fun and leisure happened back in 2017.  Such contention would, in my view, be off-set by F himself also engaged in horse-racing (for leisure or business) with clients which had distracted him from immediately attending to D’s schooling details sent across by M to him via WeChat messages[60].

145.  On paragraph 34 (f), such contention does not have any substantial value without further details or particularity as to the importance of any particular school event that had been missed.   

146.  On paragraph 34 (g), such contention was not supported or corroborated by any other evidence, such as the ISIR.  Thus, this is again self-serving with no evidential or probative value as a ground of contention.

147.  On paragraph 34 (h), whilst it was this Court’s views that M’s relocation was somehow related to her personal interests, the need for segregating M’s personal interests from D’s best interests had already been well noted and properly tackled.

148.  On paragraph 34 (i), this is again F’s self-serving statement unsupported or corroborated by other evidence.  Thus, it carries no evidential or probative value as a ground of contention.

Other Practical Considerations

149.  I have 5 other practical considerations.

150.  First, D would be in her puberty soon.  M would be the best person to guide her through such stage whilst F could only seek assistance from the paternal grandmother.  F had adduced no evidence on such issue which is imminent and important.

151.  Secondly, it remains uncertain and unclear whether F’s girlfriend would be getting along with D in the likely event that her assistance was required in the absence of M after her relocation fails and she decided to return to Chengdu.

152.  Thirdly, the status of D in Mainland China if relocation is successful.  Whether D would be entitled to receive state benefits; such as medical and education subsidies since she was born in Hong Kong.

153.  Fourthly, given the time of this Judgment, whether there is still school placement in LIS for D if relocation is successful.

154.  Lastly, whether the prevailing quarantine requirement in Mainland China would affect D’s schooling schedule in LIS if relocation is successful.  

Decision and Orders

155.  Given full and careful consideration of all the above, and taking into account the practical considerations whichever are applicable, I decided that it is in D’s best interests to relocate with M to Chengdu, Mainland China, subject to :-

(a)  Written confirmation from LIS be produced before this Court prior to relocation as to the availability of school placement for D for the school year 2021/2022 and, as far as practicable, documentary proof of enrolment;

(b)Written Undertaking of M to return D to Hong Kong as and when called upon to do so be produced before this Court within 7 days of this Judgment;

(c)  Written Undertaking of M to arrange access for F, including but not limited to, direct physical access within Hong Kong and Mainland China; and telephone/zoom/video access whilst in Mainland China; together with schedules and details be produced before this Court for approval prior to relocation;

(d)  Written Undertaking of M to provide F with full and accurate contact details; including telephone numbers and residential address where D would be contactable and residing prior to relocation;

(e)  Written Undertaking of M to forthwith inform F any change of contact details of D in writing and be communicated to F through electronic means, such as text or WeChat messages, Whatsapp messages or emails, within 7 days of any such changes;

(f)   Written Undertaking of M to provide F with copies of all school calendars, school reports, details of extra-curricular activities and tuition of D through electronic means, such as scanned images, as and when they are available;

(g)Written Undertaking of M to arrange and continue to maintain comprehensive medical insurance coverage for D at all times when D was in Mainland China, such coverage to be produced before this Court prior to relocation; and

(h)Actual date, time and details of departure from Hong Kong with itinerary of travel 14 days before relocation.

156.  Upon full compliance of paragraphs 155 (a) to (h) above, leave be granted to M to permanently remove D from the jurisdiction of Hong Kong to Chengdu, Mainland China.

157.  The removal restrictions of D under the terms of the Order dated 20/9/2020 be set aside.

158.  There be liberty to apply for further directions.

Costs

159.  Given the nature of this application, I decided that the usual costs order should apply.

160.  Hence, I decided that there be no Order as to costs including all costs reserved, save and except the costs of F’s Expunge Summons which had been decided to be further dealt with by way of paper disposal.

161.  This is a costs order nisi which would become absolute if no application is made to vary the same within 14 days from the date of this Judgment.

162.  Last but not least, I wish to thank Counsel and the legal teams for both parties for their valuable assistance to this Court.

[1] See paragraphs 4 to 12 of the Decision

[2] A2/192-216

[3] A1/68-75

[4] A2/316-331

[5] A1/23-26

[6] A2/332-365

[7] A1/35 – 36 §§20 to 23 of M’s Aff

[8] A1/50 - 67

[9] See §3 of this Judgment

[10] A1/56– 63 §§34 – 61 of F’s Aff

[11] A1/56 §34 of F’s Aff

[12] A1/57-59 §35(1) to (13) of F’s Aff

[13] A1/59 §37 of F’s Aff

[14] A1/56– 63 §§34 – 61 of F’s Aff

[15] A1/61 §§49 and 51 of F’s Aff

[16] A1/61 §§52 of F’s Aff

[17] A1/61 §§55 of F’s Aff

[18] A1/61 §§55 of F’s Aff

[19] A1/62 §§60 of F’s Aff

[20] A1/53 §18(2) of F’s Aff

[21] A1/53 §18(3) of F’s Aff

[22] A1/53 §18(4) of F’s Aff

[23] A1/55 of F’s Aff

[24] A1/69 §6 of CCP’s Aff

[25] A1/69 §7 of CCP’s Aff

[26] A1/70 §9 of CCP’s Aff

[27] A1/73 §27 of CCP’s Aff

[28] A2/316-331

[29] A2/330 §61(1), (2) and (3) of the SIR

[30] A2/338

[31] A2/337- 338

[32] See §§5(1) & (2) of W’s Closing Submissions

[33] A2/329

[34] A2/329 §57 of SIR

[35] A2/329 §57 of SIR

[36] A2/323-324 at §§32 to 38

[37] See §§48 to 49 of this Judgment

[38] See §7 of this Judgment

[39] See §§141 to 143 of F’s Counsel’s Closing Submissions

[40] See §144 of F’s Counsel’s Closing Submissions

[41] See A2/332 to 365

[42] A1/79 §10(b) of M’s 2^nd Aff

[43] B1/420 to 425 Exhibit “ZFY-12”

[44] B1/487 to 489 Exhibit “ZFY-22”

[45] B2/846 to 854 Exhibit “SCHC-2”

[46] B2/853

[47] A1/55 §31 of H’s Aff

[48] A1/58 §35(9) of H’s Aff                                                                                                                                          

[49] A1/68-75

[50] A2/326 §43 of the SIR

[51] A2/326§43 of the SIR

[52] B1/402 to 403

[53] B1/402

[54] B1/403

[55] A1/68 to 75

[56] B1/378 to 390

[57] See §§26 and 34 of this Judgment

[58] See paragraph 71 of this Judgment

[59] See paragraphs 48 to 50 of this Judgment

[60] See paragraph 117 of this Judgment