HONG KONG SAR, CHINA Law and Practice Contributed by: Jocelyn Tsao and Philippa Hewitt, Withers
where family support is even more important than in a determination for care and control within the juris - diction. As the best interests of the children are the court’s “first and paramount” consideration, keeping the children together would be in their interests in the majority of cases, and normally in line with their wishes. 2.3.5 Loss of Contact As referenced in 2.3.1 Factors Determining an Appli- cation for Relocation , the loss of contact between the left-behind parent and the children is an important factor that the court will bear in mind for that parent, but also when analysing what is in the best interests of the children. The loss of regular contact with one parent is not – other than in extreme cases – considered to be in their best interests. If it is deemed overall in the children’s best interests to leave, the court will endeavour to put into place safeguards in respect of future contact in the form of orders for regular holiday access visits, and regular access via telephone, Skype, WhatsApp or FaceTime. The parent removing the children may have to give undertakings to the court to co-operate with the left- behind parent in facilitating this. In rare cases, such as those involving domestic vio - lence or where the relationship between the children and the left-behind parent has been damaged, the court may order limited access to begin with, which may increase over time, sometimes on condition that the parents and/or children attend counselling. 2.3.6 Which Reasons for Relocation Are Viewed Most Favourably? In assessing what would be in the best interests of the children, the court may look most favourably on a well-thought-out plan for the children in which it can be seen that they would benefit from the move, despite losing the status quo and regular contact with the left-behind parent. The emotional well-being of the primary carer is a fac - tor, but only if it can be demonstrated that a refusal
to remove would affect them to such a degree that it would not be in the best interests of the children to deny leave to remove. It has also been successfully argued that, for a dependent spouse in Hong Kong, there are limited opportunities for employment and the family would be financially better off if that parent were allowed to move. Similarly, work opportunities overseas for the “breadwinner” may be a good reason to move the family. The strong views of elder children would be persua - sive. They may very well want to attend their chosen school overseas. 2.3.7 Grounds for Opposition to Relocation The court will be most responsive to an argument that the plan for the relocation is not well thought out, is unnecessarily disruptive for the children and is not in their best interests. Arguments in favour of the status quo may be per - suasive, particularly if both parents were fully involved with the children and there was, for example, an order for shared or joint care and control. As with the arguments in 2.3.6 Which Reasons for Relocation Are Viewed Most Favourably? , the reverse is true in respect of financial motivations for the move and the court may consider that the fam - ily would be financially better off, and therefore more stable, if they all remained in Hong Kong. The firm views of elder children would be persuasive here too. Teenagers often have firm friendship groups and are also in a crucial stage of their education, which may persuade a court to refuse an application for leave. If the parent intending to relocate the children has not been facilitative of access to the other parent and is shown to be obstructive of the children’s relationship with the other parent, this might be a reason for the court to not allow relocation for fear that the children will be permanently cut off from the left-behind parent.
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