HONG KONG SAR, CHINA Law and Practice Contributed by: Frederick Hui, Terence Luk, Serene Lam and Kenneth Yau, Zhong Lun Law Firm
establishing access orders for the left-behind father in Hong Kong. The approach is particularly evident when the appli - cant is a “trailing spouse” – ie, one who relocated to Hong Kong solely due to the other spouse’s career prospects in Hong Kong. Trailing spouse represents a prominent demographic in Hong Kong. Following a marital breakdown, such individuals often have no remaining ties to Hong Kong. In such cases, courts frequently accept that returning to the applicant’s home country serves the child’s best interests, given the availability of extended family support, state ben - efits, and better employment prospects compared to remaining in Hong Kong, where they are often iso - lated, lack emotional support, and depend entirely on spousal maintenance. Additionally, where the applicant is the primary car - egiver of the child, the court will generally view their application sympathetically, provided the application is genuine and the proposal is practical and reasona - ble based on the welfare of the child. The court places substantial weight on the emotional and psychologi - cal well-being of the primary caregiver, accepting that refusing a realistic move can lead to severe distress, isolation, and depression, which directly compromises the child’s welfare, bearing in mind that the child’s best interest is the paramount consideration. 2.3.7 Grounds for Opposition to Relocation As ultimately the court’s decision is driven by the best interest of the child, it will show no sympathy toward a poorly planned, disruptive or unreasonable relocation proposal that fails to cater adequately to the child’s physical, emotional and educational needs. As estab - lished i n SMM v TWM [2010] 4 HKLRD 37, there is no presumption in favour of the applicant; rather, signifi - cant weight is attached to whether the proposed plan is practical and well-researched. Additionally, the court is inherently hesitant to disrupt the status quo, particularly where maintaining conti - nuity serves the child’s best interests. The older the children are, the greater the potential negative impact of a sudden change in environment, as their lifestyles, social circles, and living arrangements are already well established. Where older children express firm and
settled objections to relocation, the court will not hesi - tate to give substantial weight to their views. 2.3.8 Costs of an Application for Relocation Under the High Court Ordinance (Cap. 4) and the Dis - trict Court Ordinance (Cap 336), costs are in absolute discretion of the court, giving the Court power to make any order over costs as it deems fit. However, family courts generally do not award legal costs to either side in proceedings involving children – reserving such orders only for instances of exceptionally egregious misconduct (see SMM v TWM [2009] 4 HKC). In other words, both parents must typically prepare to person - ally shoulder their own legal fees. However, eligible parties facing financial constraints do have the option to seek public assistance by applying for legal aid. Legal costs vary significantly from case to case, depending largely on the volume of work required and the duration of proceedings. Costs accumulate sub - stantially with every additional court hearing, interloc - utory application, and/or trial. Furthermore, extensive procedural steps, such as the preparation of Social Welfare Reports or judicial interviews with the child, will naturally increase the preparatory work and overall legal expenditure. To minimise these costs, spouses are strongly encouraged to maintain an open, hon - est, and co-operative attitude during discussions and negotiations, avoiding unnecessary litigation and pro - tracted disputes. 2.3.9 Time Taken by an Application for Relocation Similar to 2.3.8 Costs of an Application for Reloca- tion , the time taken by a relocation application can vary significantly depending on the complexity of the case, the volume of work involved, and the number of proceedings required. When parents are co-operative and are willing to reach consensus, the time required can be drastically lowered, whereas if parents are entrenched in disagreement and prepared to fight till the very end, it may take years to obtain the final judg - ment. It is best for the parents to negotiate and make agreement in view of the best interests of the child. 2.3.10 Primary Caregivers Versus Left-Behind Parents As discussed in 2.3.6 Which Reasons for Reloca- tion Are Viewed Most Favourably? , being the primary
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