The New Age of International Relocation
6th World Congress on Family Law and Children’s Rights
• Angie Todd
• 18 March 2013
• Sydney, Australia
Hong Kong and demographics
• Hong Kong comprises of Hong Kong Island, Kowloon and the
New Territories
• In Hong Kong all applications for permanent removal of children
have been for international relocation; no domestic
• Even though Hong Kong is a SAR of China there is no special
consideration for removal to the Mainland or other Special
Administrative Regions
Hong Kong & International relocation
• In Hong Kong there are three published cases where leave was
not granted to the applicant at first instance; one of those
applications was overturned on appeal SMM v TWM CACV
209/2009
• Hong Kong is bound by its own Court of Appeal decision of SMM
V TWM CACV 209/2009
• reaffirms Hong Kong’s reliance on the guidance provided by
English authorities of Poel v Poel [1970] and Payne v Payne
[2001] 1 FLR 1053
Hong Kong & International Relocation post K v K:
BWBP v TKnDP FCMC 2128 / 2009 (unreported)
• Mother’s application to permanently relocate to Plettenberg Bay,
South Africa
• Boys 12 and 9
• Mother born in Johannesburg and her family remained there
• Father born in Zambia and his family later relocated to South
Africa; only the paternal Grandmother continued to reside in
South Africa as the father’s brothers had relocated around the
world
BWBP v TKnDP
• Parties lived in Hong Kong since February 1996
• Father was a Captain for an airline
• Mother a speech therapist
• Each party had significant interests outside of Hong Kong with
the Mother pursuing interests in self development and personal
growth courses and retreats around the world
• Father pursued Iron Man and triathlon competition events
around the world
BWBP v TKnDP
• 2009 Consent Order:
• joint custody order of the two children
• Sole care and control order to the Mother by consent; offset by
Recitals recognising Father’s input in parenting responsibilities
• Father’s access 15 days each month (14 in February); in
accordance with his pilot’s roster
• Holidays were split in accordance with the Father’s pilot’s roster
BWBP v TKnDP
• Court stated the case was ‘different’ from the norm
• Court said that the case was ‘further complicated’ by the
landmark case of K v K
• Court considered three issues to be determined:
• Could either parent be described as primary carer
• Should permission be given for children to relocate to South Africa
• How should time be allocated once relocation issue determined
BWBP v TKnDP
• Court said case was one of genuine shared care if not
absolutely equal care
• Other considerations: travel time for Father, lack of sporting
opportunities, South Africa specific considerations of possible
displacement and opportunity given the boy’s current ages,
Mother’s plan to live on a small holding, crime
• Leave to permanently relocate was refused
• Hong Kong Guardianship of Minor’s Ordinance: welfare of the
child is paramount
JHCI v MSYI (formerly known as MSY) FCMC
12528 of 2011 (unreported)
• Judgment 15 January 2013
• Mother’s application to relocate from Hong Kong to California
• Boy and girl aged 12 and 10;
• Mother lived in Hong Kong for 18 years; Father 17 years
• Father from UK and Mother born Manila with her family having
immigrated to US
• Father 42 years old; Mother 50 years old
• Father and Mother worked in investment banking; Mother on
management side
JHCI v MSYI (formerly known as MSY) FCMC
12528 of 2011 (unreported)
• At time of Trial Father had ‘interim care and control’ order for the
elder child
• Black LJ in K v K
• Court said ‘It was made very clear to both parties … that any
preliminary skirmishes would not be entertained’.
• Court said it was a ‘look and see arrangement’
JHCI v MSYI (formerly known as MSY) FCMC
12528 of 2011 (unreported)
• Not ‘true expat’ case and bar set higher as a result
• Views of children expressed clearly: Elder child wished to
remain living with Father in Hong Kong; younger child drew on
whiteboard ‘split time equally with parents spending Sunday to
Tuesday with Father, half day with each parent on Wednesdays,
Thursday to Saturday with Mother’.
JHCI v MSYI (formerly known as MSY) FCMC
12528 of 2011 (unreported)
• Impact on Mother: ‘Likely to be devastated…likely to be
angry…however she has lived in Hong Kong for a considerable
period of time and made it her home…she has friends here.
She is able to work. She is of Asian descent’
• Leave to permanently relocate refused
• Order for joint custody with shared care of the children
Where to now … and questions?
• BWBP v TKnDP
• JHCI v MSYI
• No appeal of these cases and Court remains bound by its own
Court of Appeal decision SMM v TWM
• Questions…?