The New Age of International Relocation 6 th World Congress on Family Law and Children’s Rights Angie Todd 18 March 2013 Sydney, Australia

Hong Kong and demographics Hong Kong comprises of Hong Kong Island, Kowloon and the New Territories In Hong Kong all applications for permanent removal of children have been for international relocation; no domestic Even though Hong Kong is a SAR of China there is no special consideration for removal to the Mainland or other Special Administrative Regions

Hong Kong & International relocation In Hong Kong there are three published cases where leave was not granted to the applicant at first instance; one of those applications was overturned on appeal SMM v TWM CACV 209/2009 Hong Kong is bound by its own Court of Appeal decision of SMM V TWM CACV 209/2009 reaffirms Hong Kong’s reliance on the guidance provided by English authorities of Poel v Poel [1970] and Payne v Payne [2001] 1 FLR 1053

Hong Kong & International Relocation post K v K: BWBP v TKnDP FCMC 2128 / 2009 (unreported) Mother’s application to permanently relocate to Plettenberg Bay, South Africa Boys 12 and 9 Mother born in Johannesburg and her family remained there Father born in Zambia and his family later relocated to South Africa; only the paternal Grandmother continued to reside in South Africa as the father’s brothers had relocated around the world

BWBP v TKnDP Parties lived in Hong Kong since February 1996 Father was a Captain for an airline Mother a speech therapist Each party had significant interests outside of Hong Kong with the Mother pursuing interests in self development and personal growth courses and retreats around the world Father pursued Iron Man and triathlon competition events around the world

BWBP v TKnDP 2009 Consent Order: joint custody order of the two children Sole care and control order to the Mother by consent; offset by Recitals recognising Father’s input in parenting responsibilities Father’s access 15 days each month (14 in February); in accordance with his pilot’s roster Holidays were split in accordance with the Father’s pilot’s roster

BWBP v TKnDP Court stated the case was ‘different’ from the norm Court said that the case was ‘further complicated’ by the landmark case of K v K Court considered three issues to be determined: Could either parent be described as primary carer Should permission be given for children to relocate to South Africa How should time be allocated once relocation issue determined

BWBP v TKnDP Court said case was one of genuine shared care if not absolutely equal care Other considerations: travel time for Father, lack of sporting opportunities, South Africa specific considerations of possible displacement and opportunity given the boy’s current ages, Mother’s plan to live on a small holding, crime Leave to permanently relocate was refused Hong Kong Guardianship of Minor’s Ordinance: welfare of the child is paramount

JHCI v MSYI (formerly known as MSY) FCMC of 2011 (unreported) Judgment 15 January 2013 Mother’s application to relocate from Hong Kong to California Boy and girl aged 12 and 10; Mother lived in Hong Kong for 18 years; Father 17 years Father from UK and Mother born Manila with her family having immigrated to US Father 42 years old; Mother 50 years old Father and Mother worked in investment banking; Mother on management side

JHCI v MSYI (formerly known as MSY) FCMC of 2011 (unreported) At time of Trial Father had ‘interim care and control’ order for the elder child Black LJ in K v K Court said ‘It was made very clear to both parties … that any preliminary skirmishes would not be entertained’. Court said it was a ‘look and see arrangement’

JHCI v MSYI (formerly known as MSY) FCMC of 2011 (unreported) Not ‘true expat’ case and bar set higher as a result Views of children expressed clearly: Elder child wished to remain living with Father in Hong Kong; younger child drew on whiteboard ‘split time equally with parents spending Sunday to Tuesday with Father, half day with each parent on Wednesdays, Thursday to Saturday with Mother’.

JHCI v MSYI (formerly known as MSY) FCMC of 2011 (unreported) Impact on Mother: ‘Likely to be devastated…likely to be angry…however she has lived in Hong Kong for a considerable period of time and made it her home…she has friends here. She is able to work. She is of Asian descent’ Leave to permanently relocate refused Order for joint custody with shared care of the children

Where to now … and questions? BWBP v TKnDP JHCI v MSYI No appeal of these cases and Court remains bound by its own Court of Appeal decision SMM v TWM Questions…?