HONG KONG SAR, CHINA Law and Practice Contributed by: Frederick Hui, Terence Luk, Serene Lam and Kenneth Yau, Zhong Lun Law Firm
2.3 Application to a State Authority for Permission to Relocate a Child 2.3.1 Factors Determining an Application for Relocation When resolving a contested relocation application, the court carefully evaluates the proposal based on the guidance set out in Payne v Payne stated in 2.2 Relocation Without Full Consent . The judge will consider whether the relocating parent has a genu - ine application that is not motivated by some selfish desire to exclude the other parent from the child’s life. Then it will come to the assessment of the future plan, assessing whether the application is a realistic, well- researched and investigated proposal, encompassing stable accommodation, school enrolment, and local family support. The judge shall also closely analyse the motivations of both parents, ensuring the appli - cant’s desire to move is a genuine one, while assess - ing if the left-behind parent’s opposition is grounded in true concern and the extent of detriment to the par - ent and his/her future relationship if the application is being granted. Finally, the court weighs the psycho - logical impact of a refusal on the primary caregiver’s well-being, the preservation of the child’s established status quo, and the practical and financial logistics of maintaining regular direct contact with the left-behind parent. Beyond the guidance set out in Payne v Payne , the Hong Kong court’s single overriding and paramount directive is to decide what arrangement is in the best interests of the child. Notwithstanding the unpassed Proposed Children’s Proceedings (Parental Responsi - bility) Bill, judges often make reference to the welfare checklist therein to assess what constitutes the best interests of the child. It includes: • the ascertainable views of the child concerned (considered in the light of the child’s age and understanding); • the child’s physical, emotional and educational needs; • the nature of the relationship of the child with each of the child’s parents and with other persons; • the likely effect on the child of any change in the child’s circumstances;
• the child’s age, maturity, sex, social and cultural background and any other characteristics of the child that the court considers relevant; • any harm that the child has suffered or is at risk of suffering; • any family violence involving the child or a member of the child’s family; • how capable each of the child’s parents, and any other person, is of meeting the child’s needs; • the practical difficulty and expense of the child having contact with a parent; • the range of powers available to the court; and • any other fact or circumstances that the court con - siders relevant, which serves as a safety net for the The wishes and feelings of the child are an impor - tant consideration that the court has a statutory duty to evaluate, although the judge has the discretion to decide the weight attached to them, making them not necessarily the final determining factor in a relocation dispute. Under the welfare checklist, the court must have regard to the child’s ascertainable views in light of their age and understanding. To gather this infor - mation, the court primarily relies on a social welfare report, wherein a social welfare officer interviews the children and may provide a recommendation; how - ever, the judge holds wide discretion and is not bound by this recommendation. In matrimonial proceedings and family proceedings, wardship proceedings and proceedings under the Child Abduction and Custody Ordinance, including the relocation applications, judges may choose to meet with the children directly to gauge their feelings and own views, as per Practice Direction – PDSL5 Guidance on Meeting Children. During such meetings, the judge’s role is not to collect new evidence, but rather to reassure the child and make it explicitly clear that the final legal responsibility for the decision rests solely on the court, thereby relieving the child of any emotional burden. court to exercise its power accordingly. 2.3.2 Wishes and Feelings of the Child The weight given to these views directly correlates with the child’s age and maturity, as discussed in 2.3.3 Age/Maturity of the Child .
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