Introduction
There is a common perception that the application to remove a child permanently overseas is less likely to be successful if the non-primary care parent is the applicant. Indeed, the Court tends to maintain the current living arrangement of a child in order to avoid significant disruptions in his life. As such, the Court is generally reluctant to change the primary carer and relocate a child at the same time without good reasons for doing so. However, in a recent case VK v SAFG [2018] HKFC 126, the Court allowed the application of a non-caretaking parent to relocate the only child to Switzerland.
Background
The marriage between the Father, an Austrian national and the Mother, a Swiss national, lasts for a short time. During their marriage, the Mother gave birth to one Daughter in Hong Kong, which is the parents’ residence at that time. The Daughter has dual Austrian/Swiss nationality and is 7 years old now.
The Mother has been the Daughter’s primary carer for five years since her separation with the Father in 2012. The Daughter expressed that she prefers to live in Hong Kong with the Mother.
The Law
In this case, the Court decides what would be in the Daughter’s overall best interest since the welfare of the child is always the paramount consideration in relocation disputes.
Decision
The Court was concerned about the Mother’s mental health and her consistent failure to comply with any court order. In addition, neither the Daughter nor the Mother has a valid visa to reside in Hong Kong. This is likely to affect the Daughter’s schooling in future.
Interestingly, the Court declined to adopt the recommendations in the Social Welfare Report. The Social Welfare Officer recommended against the Father’s relocation after considering the Mother’s role as the primary carer and the Daughter’s clear preference to live in Hong Kong. Instead, the Court relies on the Clinical Psychologists Report which is based on various test results, conjoint sessions and clinical interviews conducted by the Clinical Psychologist. Two important observations are noted: first; the quality of attachment in the father-daughter relationship is higher than that in the mother-daughter relationship; second, the Daughter perceives the Mother’s domestic helper, who has currently returned to the Philippines, as a more significant attachment figure than the Mother.
Moreover, the Court found the Father’s application for relocation realistic given his ability to provide residence, child care and financial support for the Daughter. On the other hand, the Mother has failed to prove that she is financially capable to take care of the Daughter.
The Court also found evidence suggesting that the Mother purposely alienated the Daughter from the Father and carried ulterior motives in opposing to the Father’s application. The Mother has repeatedly sabotaged any contact between the Father and the Daughter and even went as far as only offering access in exchange for additional financial support.
Upon careful consideration of all the circumstances of the case, the Court held that it is in the best interest of the Daughter to relocate to Switzerland with the Father. The parents will retain joint custody with reasonable access granted to the Mother.
Conclusion
The case demonstrates that there is not always an automatic presumption in favour of the primary carer. Although disruption of the status quo is traditionally perceived to not be in the best interest of the child, the only authentic principle in relocation disputes is that the welfare of the child is the most important consideration. Whether relocation is in the best interest of the child is to be decided on a case-by-case basis and is highly dependent on the circumstances and evidence available. As such, parties are advised to seek legal advice first before making arrangements for their children in this regard.
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This article is written by ONC Lawyers and was first published on ONC’s website.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.
