It is common that at the start of proceedings which involve children, that the court will make an order that a minor child cannot be taken out of or removed out of Hong Kong without leave of the court, either temporarily or permanently.
A minor child is a child who is below the age of 18 years.
A copy of the court’s order preventing the child’s removal can be served on the Director of Immigration so that the Immigration Officers at the immigration control points are notified accordingly.
Temporary removal
Temporary removal takes place when one parent takes a child out of Hong Kong for a limited period of time, typically for a holiday.
Since both parents are engaged in litigation, there is always a risk that one parent would decide to not return the child at the end of the agreed period. Hence, the rules in Hong Kong are designed to limit or to minimise such risk.
It is the norm for the parent who intends to take the child overseas to provide an undertaking, which is a written promise to the court and to the other parent, which is formally submitted to the court, to return the child to Hong Kong. if appropriate, there may also be an undertaking and acknowledgement that the child’s habitual place of residence is Hong Kong.[1]
A breach of a court undertaking can have serious consequences.
Other information which the parent who intends to travel with the child needs to provide, to the other parent and to the court, include the child’s travel itinerary and contact details during the trip, including copies of all tickets,
In many cases, both parents will agree to the child travelling overseas for a holiday, and this agreement will need to be in writing. On occasion, it may be necessary the parents to sign a consent summons which will be filed in court.
In such a case, the details of the trip, undertakings and other relevant information will need to be included in the consent summons before the court grants permission.
When applying for temporary removal, it is the responsibility of the parent’s wishing to travel to provide the information, undertakings and to explain to the court the reasons for the trip.
When deciding whether to permit the temporary removal, the court will assess whether the parent genuinely intends to return the child, and will take into account the potential benefits or risks to the child before making a decision.
Application for permanent relocation
A parent can apply to the court for leave to permanently relocate a child to another jurisdiction. If the parents cannot agree on whether the child should relocate or not, the court will make a decision, after considering the arguments from both parents.
The child’s welfare is the court’s paramount consideration. In considering an application for a permanent relocation, the court will firstly consider whether
- Is the application genuine in the sense that it is not motivated by some selfish desire to exclude the other parent from the child’s life?
- Is the application realistic, based on practical proposals that are both well researched and investigated?
If the applicant cannot show the court that the application is genuine or realistic then, refusal for the relocation would inevitably follow. If however, the application passed the above criteria, then there should be an appraisal of the reasons for the opposition of the relocation. These are:
(3) is the parent opposing the relocation motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive? What would be the extent of the detriment to that parent and their future relationship with the child if the application was granted? To what extent would that be offset by extension of the child’s relationships with the extended family and homeland?
(4) What would be the impact on the parent, either as the single parent or as a new spouse, of a refusal of the relocation application?
(5) The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate.
There is no presumption in favour of the parent who makes the application.
[1] See wrongful removal