Our children are now back in school, and there is already talk of a fourth wave of COVID-19 in Hong Kong. So how will this affect families who are already tired of struggling with e-learning, and who have been thinking of relocating for months?
For families with elderly parents or siblings overseas, many have already moved abroad to be closer to their loved ones. Earlier this year, families were concerned about their children being infected in Hong Kong, and decided to take a ‘temporary break' to places such as the United Kingdom or France. Schools there were still open, the COVID-19 cases were low, and they felt their children were safer. How things have changed since then!
However, the situation is not easy for separated or divorced parents. After a separation or divorce, in most cases, both parents retain what is known as ‘joint custody', where all major welfare decisions need to be made jointly. For example, one parent cannot unilaterally change a child's school. If they want to relocate with a child, this requires the other parent's consent, or an order of the Court. Consent is often not forthcoming, unless the other parent is willing to relocate too. In some cases, parents have become so desperate that they have wrongfully removed their children to another country, triggering abduction proceedings under the 1980 Hague Convention.
But to what extent does COVID-19 and the balance of risk between Hong Kong and the other countries affect the Judge's decision when faced with a relocation application? Moving a child permanently to another country, and away from one parent, is not a decision taken lightly by any Judge.
The Court will consider a number of factors, with the welfare of the child being paramount:
- Motivation. There is no presumption in favour of the parent seeking to move overseas. What is key is whether there is a genuine motivation for the move and not simply a desire to limit access between the child and the ‘staying' parent.
- Practical arrangements being proposed. The Court will scrutinise the proposals being put forward, expecting these to have been well researched and investigated. Where the child will live, what school they will go to, what access arrangements are proposed with the ‘staying' parent, and how the child's expenses will be met in the new country are all matters the Court will take into account.
- Effect on the child and the applicant parent. The Court will consider the effect on the child of reduced access with the other parent, and the effect on the applicant-parent who may have, for example, a new spouse/family, if relocation is denied.
It is difficult to assess how COVID-19 will factor into a Judge's decision. Although we hope that the pandemic will be short-lived, the situation is evolving in all countries, and it is therefore unlikely that a relocation application based solely on COVID-19 is likely to be successful. There will have to be other solid reasons justifying why a long-term move is in the child's best interests.
Originally published by Withersworldwide, October 2020
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