HONG KONG SAR, CHINA Law and Practice Contributed by: Frederick Hui, Terence Luk, Serene Lam and Kenneth Yau, Zhong Lun Law Firm
Section 5 of the AO. Applications must be made either by married couples jointly or by a single individual – legally excluding unmarried cohabiting couples from applying together. A sole applicant must generally be at least 25 years old, or 21 years old if being a rela - tive, or the parent to the child, or married to a parent of the child. Married spouses making the application must both be at least 21 years old unless one is a biological parent, and sole male applicants are barred from adopting female children unless exceptional cir - cumstances justify the measure. Both the child and the applicants must reside in Hong Kong, and the child must have been under the applicants’ continu - ous actual custody for a period of at least six months (which is reduced to 13 weeks if one applicant is the birth parent of the child) before the court can make an order. Beyond these thresholds, the process requires the for - mal consent of the biological parents, which can only be executed once the infant is at least four weeks old. The potential adoptive parent(s) must also go through a stringent vetting process involving medical checks, criminal background screenings, and a comprehen - sive home study by a qualified social worker. Ultimately, before finalising the order, the court must be satisfied that the adopters are fit and proper, that no financial rewards were exchanged, and that the placement strictly serves the child’s best interests. Under custody orders routinely issued by the Fam - ily Court, it is not uncommon that a minor child is prohibited from being removed from the jurisdiction without either the mutual parental consent or court permission. Therefore, if a parent wishes to perma - nently relocate a child of the family to a new country, they must obtain the consent of the other parent and, if ongoing legal proceedings have been issued, leave from the court under the Child Abduction and Cus - tody Ordinance (Cap. 512). If both parents agree to the relocation of the child, the process is usually smoother in terms of the Court’s approval. Therefore, it is essen - 2. Relocation 2.1 Whose Consent Is Required for Relocation?
tial for parents to communicate openly and honestly about the relocation, bearing in mind the best interest of the child as the first and paramount consideration. 2.2 Relocation Without Full Consent If a parent is unable to secure the necessary consent for relocation from the other parent, the dispute must be resolved by applying to the court for leave to per - manently remove the child from the jurisdiction, or, if the child has already been removed, for leave to remain outside Hong Kong. In determining whether to grant such permission, the court exercises wide discretion, treating the child’s best interests as the first and paramount consideration. Guided by the English landmark case Payne v Payne [2001] EWCA Civ 166 (adopted in Hong Kong through K v W [2006] HKFLR 292), the court will conduct a thorough appraisal of the proposal, evaluating whether the relocation pro - posal is both genuine and realistic, reviewing the motivations behind the other parent’s opposition, and assessing the impact that a refusal might have on the primary carer. Where appropriate, the court may adjourn the matter for Children Dispute Resolution (CDR), during which the judge hears from both sides and offers indica - tions and suggestions to the parties. As the same judge presides over both the CDR hearing and any subsequent trial, the parties are strongly advised to be co-operative and reasonable by heeding the judge’s suggestions. If no agreement can be reached during the CDR, the matter will proceed to trial before the same judge. Alternatively, parents can attempt to bypass a costly and hostile court battle by resolving the conflict out of court through negotiation and family mediation. Despite the high-conflict nature of relocation disputes, a successful mediation can produce a detailed settle - ment agreement regarding travel, living arrangements, and future contact, which the parents can then submit to the court to be formalised as a consent order.
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