Your Legal Rights To Relocate Your Child

Your Legal Rights To Relocate Your Child 1
12 月 3, 2021

In our previous post, we discussed the importance of a well-thought-out plan before you decide to move your child away to another country. Whilst it may be tempting to romanticize the idea of a fresh start, it is important to refrain from jumping the gun and instead reflect upon the effects of a relocation on your child and your ex-spouse.

Unless you and your ex-spouse agree to a relocation, the relocation process will be costly and time-consuming once the Family Court is involved in the decision-making process. Relocation applications are taken very seriously by the Family Court in Hong Kong. Thus, before you decide to relocate, it is prudent to become knowledgeable as to what the Family Court will consider in making its decision regarding your desire to relocate. Thus, it is especially important that you retain a solicitor to discuss a relocation.

1. Welfare of the Child: In Hong Kong, the welfare of the child is the paramount consideration and in Hong Kong, the Family Court will ask important questions before making a decision: First, is the removing parent’s application genuine? Second, is the removing parent’s application realistic? See Payne v Payne [2001] EWCA Civ 166 and also Z v XWN [2018] 3 HKLRD 644. With respect to the first question of concern, the Family Court will look at whether the removing parent’s motivation is genuine and that the removal is not for selfish reasons or to exclude the other parent from the child’s life. The Family Court will also look at whether the decision to remove the child is well-researched and that the proposals in place for the child are practical. Practical considerations can include schooling and proximity of extended family allowing the child a support system. With that being said, ask yourself: Where will my child attend school/daycare? What community will we plan to live in? What family and friends will my child be surrounded by and what support system do I have in place? These are things to consider because the Family Court will consider these factors when deciding what is in the best interests of your child. Once the Family Court considers the removing parent’s motivation and practical considerations for the removal of the child, the Family Court will then look at the opposing parent’s reasons for the opposition. Here, the Family Court will also look at the opposing parent’s motivations and the extent of detriment the opposing parent will face if the application is granted for the other parent to remove the child. The Family Court will also consider the detriment to the removing parent in the event the application is refused and what it would mean for him/her. It is important to remember that whilst all of these factors will be considered by the Family Court, it will all be considered in light of the welfare of the child.

2. Your Personal Plans: In keeping with the theme of the welfare of the child, the Court will likely request detailed information regarding your personal plans as well. Your plan is important because it directly relates to the welfare of the child. For example, what type of employment do you have lined up once you move and how will this help you support yourself and your child? Are you moving for personal reasons such as a new marriage? Are you pregnant and your new husband lives in a different city? These are all factors the Court may take into consideration when making its final orders so the more information you can provide the Court, the better.

3. Frustration Of Contact: As noted above, one thing you will want to reflect upon is the reason behind your decision to move with your child. Are you trying to frustrate your child’s contact with your ex-spouse? If that is your goal, you may want to think twice before you file a motion for a relocation because it is likely that your motive will become transparent through court proceedings. Once the Family Court finds that you are moving to frustrate contact with your ex-spouse, it will play into the Family Court’s decision to allow your relocation.

Make an informed decision that is based on what you know to believe is in the best interests of your child as this will be the Family Court’s paramount consideration when ordering a relocation. Finally, it is important to note a few things as we end this article: First, there is no presumption of favour just because you are the primary caretaker of the child. Second, remember that you cannot unilaterally remove your child from Hong Kong without written consent from the other parent or leave of the Court. If you attempt to remove your child without the other parent’s consent and he/she becomes aware of this, the other parent could easily serve an order on the Director of Immigration to restrain your child from being removed from Hong Kong. Any questions you have about a relocation should be carefully discussed with your solicitor so you are aware of all the risks involved.

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