Caught in the middle: approaches to child relocation in England and Wales, Singapore and Hong Kong

Orders following a permanent removal will almost always be accompanied by comprehensive arrangements for direct contact, including extended holidays in each jurisdiction and generous remote communication via social media (such as Skype, WhatsApp, Facetime) and phone calls.

The child’s wishes and feelings are taken into account (relative to their age and maturity) but are not determinative. In each jurisdiction, the process may involve the relevant social welfare department in that country and, as part of that process, the children will be consulted and their views noted.

All three jurisdictions have signed up to the Hague Convention on the Civil Aspects of International Child Abduction (which comes into play when children are wrongfully removed or retained in another country by a parent) and have signed up to various reciprocal enforcement laws that provide for recognition and enforcement of foreign court orders with many other countries.  

Some fundamental differences

On issuing proceedings, the court will have jurisdiction over all children: in Singapore this means until they are 21 years of age, in Hong Kong the age limit is 18.

In Hong Kong, where there are ongoing matrimonial proceedings, the applicant must seek the court's permission to permanently remove a child from the jurisdiction, whether or not the parents are in agreement. 

In England permission of the court is not needed where parents agree. Nevertheless, it is an offence to remove a child under the age of 16 from the UK (even by a parent) without appropriate consent (Child Abduction Act 1984).  Appropriate consent must be given by the child's mother and father (if he has parental responsibility) and guardian or any person named in a child arrangements order (CAO) as a person with whom the child is to live, or by obtaining permission from the court. But a parent who is named in a CAO as the person with whom the child is to live can take the child out of the UK for a period of less than one month without the other parent's permission.

There are some differences in terminology and legal status in relocation applications. In Singapore, only the parent with ‘care and control’ whom the child lives with, can relocate with the child. Thus, a parent without care and control would first need to seek care and control. In England and Wales, either parent may apply if they have parental responsibility.

The approach of the Court in each jurisdiction: a more holistic approach?

England and Wales

In England and Wales, the court deploys the welfare checklist when deciding international relocation cases. The guidance given by the Court of Appeal in Re F (A Child) (International Relocation Case) 2015 EWCA Civ 882 is authoritative: the only authentic principle is the paramount welfare of the child. In carrying out the balancing exercise, the court is not to concentrate on assumptions or preconceptions, but on the wider welfare considerations before it, the child's best interests and each of the parent's proposals and it should then determine what best meets the child's needs – staying in their country of origin, or moving abroad away from one of their parents. Article 8 rights (the right to a family and private life) are relevant and issues of proportionality come into play. The court must also factor in the rights of the child to maintain personal relations and direct contact with both parents on a regular basis.

Re F and subsequent CA judgments have clarified that focussing solely on the older judgment of Payne v Payne is likely to be wholly wrong - a wider legal analysis is also needed. This is because a step as significant as a relocation of a child to an overseas jurisdiction involves a fundamental interference between a parent and a child. As such, it requires the court to scrutinise each parent's plans carefully to ascertain what is best for each and every child in the light of their age, stage of development and the nature of their needs. 

One of the leading cases remains K v K (Relocation: Shared Care Arrangement), where it was said that the court must carry out a child-focused, proportionate global and holistic evaluation of each parent’s proposals and their impact on the child at the heart of the case. It is unhelpful to categorise cases as ‘primary carer’ or ‘shared care’ cases, and each must be approached on their own merit.

Hong Kong

The Hong Kong Court of Appeal in H v W (Child removal) [2021] HKFLR 2754 reconfirmed that the best interests of the child remained the paramount consideration and there was no presumption in favour of the primary carer, although the Payne guidance remained useful in the consideration of the welfare of the child. 

In that case, which involved a five year old child moving from Hong Kong to Singapore, the Court of Appeal reversed the order to remove the child on a number of grounds. These included the fact that the mother’s proposed plans for the child’s schooling and accommodation were not viable, too much emphasis had been placed on their financial situation, and the trial judge was criticised for not giving due consideration to a recommendation from a social welfare officer who had been working with the family for a number of years. This was not, however a case where the applicant was moving ‘home’, for which there remains a greater chance of success for a removing party in Hong Kong, but more as a result of the child’s familiarity with ‘home’ and the support that can be found there, than to accommodate the removing parent’s preference. 

Singapore

Recently in UYK v UYJ (5) Justice Debbie Ong held that 'there is no presumption for or against relocation' and factors which the court would consider in a relocation application include 'the child’s age, the child’s attachment to each parent, the child’s wellbeing in her present country of residence as well as the child’s developmental needs at that particular stage of life'.