Child relocation, or the application to permanently remove a child from the jurisdiction following a relationship breakdown, represents one of the most difficult aspects of family law to come before the court, no matter where the jurisdiction. It is one of the few examples where the court makes a binary decision and there is little scope for compromise.
England and Wales, Hong Kong and Singapore all attract multicultural families and expatriates worldwide to work and live in their cities. Each country has individuals who choose to work abroad for a period of time but the question is: if their relationship breaks down, are they aware of all the implications which are involved in moving a family? Will they be able to leave the chosen jurisdiction without applying to court, and how will this impact upon the time they will be able to spend with their children?
Similarities between England and Wales, Hong Kong and Singapore
When a dispute is brought before it, the court undertakes an extensive evaluation of all the relevant circumstances.
The law has moved on in this area. There is no longer a presumption in favour of the parent seeking to move overseas, or of the primary carer and less reliance placed upon the principles set out in Payne v Payne (a decision of the court of England and Wales) - namely that a child's happiness and security depended on the wellbeing of their primary carer (1), and therefore the court should be slow to interfere with their reasonable proposals.
The loss of relationship between the child and the parent that will be 'left behind' if the relocation takes place is a critically important factor in all relocation cases. The stronger the relationship with the child and the more involved each parent is in the child's life, the more the child will feel the loss if he or she is relocated overseas.
In planning any relocation application, the parent intending to relocate will need to have a comprehensive and well thought out plan for the children in their new location. The court will examine 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, and how the child's expenses will be met in the new country are all matters each court will take into account in each jurisdiction. The parent opposing relocation will put forward proposals that it is in the children's best interests to remain. The court will also have regard to the reciprocal enforcement regimes in the foreign country and the possibility of building in safeguards to preserve contact arrangements in the future.
Orders following a permanent removal will almost always be accompanied by comprehensive arrangements for direct contact, including extended holidays in each jurisdiction and generous remote communication via social media (such as Skype, WhatsApp, Facetime) and phone calls.
The child's wishes and feelings are taken into account (relative to their age and maturity) but are not determinative. In each jurisdiction, the process may involve the relevant social welfare department in that country and, as part of that process, the children will be consulted and their views noted.
All three jurisdictions have signed up to the Hague Convention on the Civil Aspects of International Child Abduction (which comes into play when children are wrongfully removed or retained in another country by a parent) and have signed up to various reciprocal enforcement laws that provide for recognition and enforcement of foreign court orders with many other countries.
Some fundamental differences
On issuing proceedings, the court will have jurisdiction over all children: in Singapore this means until they are 21 years of age, in Hong Kong the age limit is 18.
In Hong Kong, where there are ongoing matrimonial proceedings, the applicant must seek the court's permission to permanently remove a child from the jurisdiction, whether or not the parents are in agreement.
In England permission of the court is not needed where parents agree. Nevertheless, it is an offence to remove a child under the age of 16 from the UK (even by a parent) without appropriate consent (Child Abduction Act 1984). Appropriate consent must be given by the child's mother and father (if he has parental responsibility) and guardian or any person named in a child arrangements order (CAO) as a person with whom the child is to live, or by obtaining permission from the court. But a parent who is named in a CAO as the person with whom the child is to live can take the child out of the UK for a period of less than one month without the other parent's permission.
There are some differences in terminology and legal status in relocation applications. In Singapore, only the parent with 'care and control' whom the child lives with, can relocate with the child. Thus, a parent without care and control would first need to seek care and control. In England and Wales, either parent may apply if they have parental responsibility.
The approach of the Court in each jurisdiction: a more holistic approach?
England and Wales
In England and Wales, the court deploys the welfare checklist when deciding international relocation cases. The guidance given by the Court of Appeal in Re F (A Child) (International Relocation Case) 2015 EWCA Civ 882 is authoritative: the only authentic principle is the paramount welfare of the child. In carrying out the balancing exercise, the court is not to concentrate on assumptions or preconceptions, but on the wider welfare considerations before it, the child's best interests and each of the parent's proposals and it should then determine what best meets the child's needs – staying in their country of origin, or moving abroad away from one of their parents. Article 8 rights (the right to a family and private life) are relevant and issues of proportionality come into play. The court must also factor in the rights of the child to maintain personal relations and direct contact with both parents on a regular basis.
Re F and subsequent CA judgments have clarified that focussing solely on the older judgment of Payne v Payne is likely to be wholly wrong - a wider legal analysis is also needed. This is because a step as significant as a relocation of a child to an overseas jurisdiction involves a fundamental interference between a parent and a child. As such, it requires the court to scrutinise each parent's plans carefully to ascertain what is best for each and every child in the light of their age, stage of development and the nature of their needs.
One of the leading cases remains K v K (Relocation: Shared Care Arrangement), where it was said that the court must carry out a child-focused, proportionate global and holistic evaluation of each parent's proposals and their impact on the child at the heart of the case. It is unhelpful to categorise cases as 'primary carer' or 'shared care' cases, and each must be approached on their own merit.
Hong Kong
The Hong Kong Court of Appeal in H v W (Child removal) [2021] HKFLR 2754 reconfirmed that the best interests of the child remained the paramount consideration and there was no presumption in favour of the primary carer, although the Payne guidance remained useful in the consideration of the welfare of the child.
In that case, which involved a five year old child moving from Hong Kong to Singapore, the Court of Appeal reversed the order to remove the child on a number of grounds. These included the fact that the mother's proposed plans for the child's schooling and accommodation were not viable, too much emphasis had been placed on their financial situation, and the trial judge was criticised for not giving due consideration to a recommendation from a social welfare officer who had been working with the family for a number of years. This was not, however a case where the applicant was moving 'home', for which there remains a greater chance of success for a removing party in Hong Kong, but more as a result of the child's familiarity with 'home' and the support that can be found there, than to accommodate the removing parent's preference.
Singapore
Recently in UYK v UYJ (5) Justice Debbie Ong held that 'there is no presumption for or against relocation' and factors which the court would consider in a relocation application include 'the child's age, the child's attachment to each parent, the child's wellbeing in her present country of residence as well as the child's developmental needs at that particular stage of life'.
Generally, the longer the parties have lived in Singapore, the harder it will be to relocate and if the children were born there and have only known Singapore as their home, the application is liable to fail. There is also the element of a person's residence status in Singapore: if their divorce means that they do not have a right to stay, this may be a factor, but if the applicant is a permanent resident, removal may prove to be more difficult. For applications based on a new job opportunity overseas, the applicant will have to prove that it is a necessity, not an option. Businesses should consider if they are unwittingly creating a problem when posting their employees overseas.
Conclusion
The decision on whether to allow relocation, in each case, remains a family-centric and fact-centric exercise with children's welfare at the centre. Whilst there are discernible similarities in the approach the courts in Hong Kong, Singapore and England and Wales take in relocation cases, and the law has moved on in each jurisdiction since the case of Payne.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
