HONG KONG SAR, CHINA Law and Practice Contributed by: Jocelyn Tsao and Philippa Hewitt, Withers
2.3.8 Costs of an Application for Relocation It is always difficult to assess costs in such cases as it will depend on the level of conflict, the number of witnesses and the length of the hearing. It will also depend on the complexity of the case and whether experts are called (such as child psychologists), as well as whether it is sufficiently complex to instruct counsel. The costs will not be awarded to one party or the other in children’s cases except in cases of extreme bad behaviour, so both parties should be advised that they will likely have to bear their own legal costs. It is possible to apply for legal aid in Hong Kong. 2.3.9 Time Taken by an Application for Relocation The courts are conscious of the effect of delay on children in relocation applications, and the Court of Appeal expressed its concern in ZJ v XWN [2028] HKCA 436, noting that it was “axiomatic that with the lapse of time the child would settle down in the new environment”. In practice, the time it takes to resolve an applica - tion for leave to remove will depend on the level of agreement and the court timetable, although it usually takes at least six to eight months for the application to be determined – in some cases, it may even take a year or more. The courts will endeavour to prioritise children’s matters. As there is an element of uncertainty in respect of court timing, delay can be reduced by the settlement of the children’s matters through mediation and nego - tiation. With a mediation agreement, a level of detail – which can be provided to the left-behind parent to allay fears in respect of future contact with the children – can be set out in full. These cases are notoriously difficult to settle by medi - ation, as essentially there is a loser; however, it can be done – and regularly is – with skilled mediators to assist the parties.
2.3.10 Primary Caregivers Versus Left-Behind Parents As previously set out, the best interest of the minor is the first and paramount consideration after due con - sideration of the children’s views and a social welfare report. Therefore, the important aspects of the case relating to the parents – be they the primary carer or the left-behind parent – will be secondary and part and parcel of the considerations relating to the children’s welfare. It cannot be said that the courts are more sympathetic to one parent or the other. That said, and as previously mentioned, if the primary carer is mov - ing back “home”, the bar does seem to be lower for those applicants. 2.4 Relocation Within a Jurisdiction Fortunately for families in Hong Kong – which is rela - tively small geographically – access is readily achiev - able within the jurisdiction. There are, of course, dis - putes regarding access arrangements and sometimes complicated plans must be put in place for the transfer of children from one home to the other. Another factor in Hong Kong is that this is generally greatly facilitated by the common presence of full-time domestic car - ers, who are able to accompany the children from one venue to the other. At present, if there are no proceedings before the court and no prohibition on removal of the child, it is not “illegal” to remove the child from the jurisdiction without consent of the other parent or the court. Where there are proceedings, leave of the court is required. The Proposed Children’s Proceedings (Parental Responsibility) Bill, referred to in 1.1 Parental Respon- sibility and which has yet to be ratified by the Legisla - tive Council of Hong Kong (LegCo), includes a provi - sion that would make giving written consent to remove a child from Hong Kong for more than a month man - datory. It would also be mandatory to obtain express written consent to permanently remove a child from the jurisdiction of Hong Kong. 3. Child Abduction 3.1 Legality
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