Lawful Removal from Jurisdiction

 

Leading Authority in Hong Kong

SMM v TWM CACV 209/2009, [2010] 4 HKLRD 37 – Hartmann JA – The parties agreed that the applicable principles governing relocation application are based on the Payne v. Payne line of cases. The Family Court is therefore bound by both Poel v Poel [1970] and Payne v Payne [2001] 1 FLR 1053, [2001] EWCA Civ 166. Since then the Court of Appeal in England and Wales has handed down its most recent decision on relocation namely MK v CK [2011] EWCA Civ 793, which in broad terms reiterates that in all cases concerning children – ‘the principle – the only authentic principle – that runs through the entire line of relocation authorities is that the welfare of the child is the court’s paramount consideration.  Everything that is considered by the court in reaching its determination is put into the balance with a view to measuring its impact on the child’ per Black LJ, paragraph 141.

These principles have been applied in Hong Kong, for example, in M v. B (Removal of Children from the Jurisdiction) FCMC 6078/2008 by H H Judge Bruno Chan,  MJP v JWP FCMC 9154 / 2008 by HHJ Melloy and in  JHCI v MSYI (formerly known as MSY) FCMC 12528/2011.

Payne is based on the earlier decision of Poel v. Poel [1970] 1 WLR 1469.  In Re G. (Leave to remove) [2008] 1 FLR 1587 the English Court of Appeal reaffirmed the principles in Payne – see also Re L [2012] EWHC 3069 (Fam) – Payne v Payne [2001] EWCA Civ 166 held at paras 85 -86:

‘In summary I would suggest that the following considerations should be in the forefront of the mind of a judge trying one of these difficult cases. They are not and could not be exclusive of the other important matters which arise in the individual case to be decided. All the relevant factors need to be considered, including the points I make below, so far as they are relevant, and weighed in the balance. The points I make are obvious but in view of the arguments presented to us in this case, it may be worthwhile to repeat them.

(a) The welfare of the child is always paramount.

(b) There is no presumption created by section 13(1)(b) in favour of the applicant parent.

(c) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.

(d) Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.

(e) The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.

(f) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.

(g) The opportunity for continuing contact between the child and the parent left behind may be very significant.

All the above observations have been made on the premise that the question of residence is not a live issue. If, however, there is a real dispute as to which parent should be granted a residence order, and the decision as to which parent is the more suitable is finely balanced, the future plans of each parent for the child are clearly relevant. If one parent intends to set up home in another country and remove the child from school, surroundings and the other parent and his family, it may in some cases be an important factor to weigh in the balance. But in a case where the decision as to residence is clear as the judge in this case clearly thought it was, the plans for removal from the jurisdiction would not be likely to be significant in the decision over residence. The mother in this case already had a residence order and the judge`s decision on residence was not an issue before this Court.’

Example: In the matter of S (a Child) [2012] UKSC 10

Appeal by mother to the Supreme Court against an order of the English Court of Appeal that she should immediately return her son, aged two, to Australia. The mother relied on Art 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction 1980. Appeal allowed.

Background to the Appeals

A mother appeals against an order of the English Court of Appeal that she should immediately return her son, WS (hereafter “W”), who is aged two, to Australia. The order was made pursuant to Article 12 of the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (‘the Convention’) and to section 1(2) of the Child Abduction and Custody Act 1985, which incorporates the Convention into domestic law [1].

The mother is British, with Australian citizenship; the father is Australian [4]. The parents, who were not married, lived with W in Sydney [4]. In 2005 the mother had moved to Australia with her British husband; her marriage failed and she was divorced in 2008 [8]. In October 2008 W’s parents began to cohabit [8].

Between 1994 and 1998 the father had been a heroin addict and unfortunately, the beginning of their relationship and of the mother’s pregnancy in February 2009, was a period of impending financial disaster for him, which ended in the collapse of his business with massive debts [9]. The father later took work as an estate agent, but contributed little to the household expenditure, which was largely met by the mother who was employed as a specialist clinical nurse [9]. The grave financial problems led to serious alcohol and drug relapses on the father’s part between 2009 and 2011 [10].

The mother suffered mental health problems, including anxiety and depression relating to separation from her husband in 2007, for which she took medication until she became pregnant in 2009 [17]. From June 2010 the mother had had extensive psychotherapy in Australia, which continued after her return to the UK [17], for a chronic anxiety condition [18].

In January 2011 the relationship between the parents began to break down. On 19 January 2011 the mother contends that she found the father injecting himself in the car in the garage and so she called the police and told him not to enter the flat again; the father admits only to drinking that day [11], although subsequently in reply to emails from the mother he did not deny the drug-taking [11]. In light of the many text and emails that were to pass between the parents from January and June 2011, the mother’s serious allegations against the father were admitted or could not be realistically be denied [7]. On 27 January 2011 the Australian police obtained on the mother’s behalf, without notice, an Apprehended Violence Order (similar to a non-molestation order) [12].

On 2 February 2011 the mother removed W to England, without the father’s consent or the permission of an Australian court. The removal was therefore in breach of the father’s rights of custody under Australian law and so it was wrongful for the purpose of Article 3 of the Convention. The only defence raised by the mother to the father’s application for an order for the summary return of W to Australia under the Convention was under Article 13(b) that “there is a grave risk that his … return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation” [5].

The evidence of the mother’s psychologist was that, in the event of a return of W, with the mother, to Australia, her fear of the father’s mental state and of his impulsive actions towards her together with the stress of isolation in Australia from her family would be likely to cause clinical depression, which in turn could diminish her secure attachment to W [18]. Further evidence from the jointly instructed psychiatrist was that the mother had suffered from Battered Women’s Syndrome, a form of Post-Traumatic Stress Disorder, followed by an acute stress reaction [25]. The psychiatrist appeared to consider that the necessary protective measures mainly comprised treatment for the father, but his evidence could, however, have been clearer on whether the protective measures suggested by the father would, in the event of return, protect W against the risk of physical or psychological harm [26].

At first instance, Charles J had declined to order W’s return to Australia. The Court of Appeal ordered W’s immediate return. The issue in this appeal was whether that Court should have proceeded on the basis that that there were nothing more than disputed allegations to support the mother’s defence. A question also arose about the correct approach to the subjective perceptions of risk held by a parent.

See Family Law Week

27th July 2017 – Re A: Letter to a Young Person [2017] EWFC 48  An extraordinary and inspired judgment from Mr Justice Peter Jackson, sitting in the Family Division on an application (by father) for removal of a 14-year old boy from UK to Scandinavia.

The General Law & Principles on Relocation of a Child

SMM v TMM (2010) 4HKLRD 37

  1. The parties agreed that the applicable principles governing relocation applications are based on the Payne v. Payne [2001] Fam 473 line of cases. They are English Court of Appeal cases.  There is no House of Lords’ decision on this issue.  These principles have been applied in Hong Kong.
  2. Payne is based on the earlier decision of Poel v. Poel [1970] 1 WLR 1469. In Re G. (Leave to remove) [2008] 1 FLR 1587 the English Court of Appeal reaffirmed the principles in Payne.
  3. The principles in Payne can be summarised as follows:
  4. a) The distinct features of a relocation application are: first, the applicant is invariably the mother and the primary carer; second, generally the motivation for the move arises out of her remarriage or her urge to return home; and third, the father’s opposition is commonly founded on a resultant reduction in contact and influence.

(per Thorpe LJ at paragraph 27)

  1. b) The two propositions that have been consistently applied by the courts are: first, the welfare of the child is the paramount consideration; and second, refusing the primary carer’s reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the Court concludes that it is incompatible with the welfare of the children.

(per Thorpe LJ at paragraph 26)

  1. c) The application should be approached as follows:

(i)        Is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life?  Then ask, is the mother’s application realistic, i.e. founded on practical proposals both well researched and investigated?  If the application fails either of these tests, refusal will inevitably follow.

(ii)       If, however, the application passes these tests then there must be a careful appraisal of the father’s opposition: is it 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 him and his future relationship with the child were the application granted?  To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?

(iii)      What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?

(iv)      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 in so far as appropriate.

(per Thorpe LJ at paragraph 40)

  1. d) In short, the relevant factors are:

(i)        The welfare of the child is always paramount.

(ii)       There is no presumption created by section 13(1)(b) of the English Children Act 1989 in favour of the applicant parent.

(iii)      The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.

(iv)      Consequently, the proposals have to be scrutinised with care and the Court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.

(v)       The effect upon the applicant-parent and the new family of the child of a refusal of leave is very important.

(vi)      The effect upon the child of the denial of contact with the other parent and, in some cases, his family is very important.

(vii)     The opportunity for continuing contact between the child and the parent left behind may be very significant.

(per Butler-Sloss P at paragraph 85)

In a recent Court of Appeal case, B, A also known as AB v. B, L also known as LB also known as LZ also known as LZB also known as LZC also known as ZCL CACV18/2018, Mr Justice Cheung helpfully summarized the law on relocation:

4.1 Recently in respect of relocation applications this Court in ZJ v XWN [2018] 3 HKLRD 644 adopted the approach of Black LJ of the English Court of Appeal in Re C (A Child) (Internal Relocation) [2016] Fam 253 at [26]:

‘26. … The only principle to be applied when determining an application to remove a child permanently from the UK is that the welfare of the child is paramount. Guidance from the Court of Appeal as to factors to be weighed in the search for what is in the best interests of the child, such as that in Payne v Payne … is valuable in so far as it helps judges to identify factors which are likely to be of importance but it is not to be applied rigidly. …’

4.2   This Court further held at [28] that:

‘ 28. Whilst we respectfully agree with Black LJ that whatever guidance fallen from earlier cases should not be applied rigidly and Vos LJ’s comment on the holistic approach, it is not mandatory for a judge in Hong Kong to set out the welfare checklist mechanically item by item to demonstrate that she has considered the same.’

4.3   The Judge granted leave because she considered that guidance may be needed from this Court on applications made by parents who are not the primary carers of the children.

4.4   In order to understand the dispute on Payne and the Judge’s reason for granting leave, it is necessary to go back in time to the cases before Payne. Very often in these cases the mother was a foreign national married to an English man and lived with her husband in England.  She was usually the primary carer of the children and wished to return to her homeland together with the children to start a new life either on her own or in a new relationship.  Payne was a case where the applicant mother had the residence order of a child of the family.  Thorpe LJ at [26] stated:

‘26. In summary a review of the decisions of this court over the course of the last 30 years demonstrates that relocation cases have been consistently decided upon the application of the following two propositions: (a) the welfare of the child is the paramount consideration; and (b) refusing the primary carer’s reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children.’

4.5   An observation of these earlier cases is that there was a tension between, on the one hand, a reluctance to interfere with the reasonable choice of the parent with custody as to how, and where, they should live and, on the other hand, the principle that the welfare of the child is the primary consideration in deciding whether to give that parent permission to relocate elsewhere.  The conflict was reconciled by the recognition that the child’s welfare was inextricably tied to the happiness of the custodial parent and the stability of the home that the parent could provide and the happiness and stability would be likely to be threatened if the parent was compelled to adopt a manner of life contrary to his or her wish.  Hence in K v K [2012] 2 FLR 880 Black LJ at [97] stated:

‘[97] I have found it helpful first to consider Payne v Payne in its historical context, which begins with Poel v Poel. In these early cases I detect a struggle to reconcile a disinclination to interfere with the reasonable choice of the parent with custody as to how, and in particular where, they should live with the undoubted principle that the welfare of the child is the primary consideration in deciding whether to give that parent permission to move to live outside the jurisdiction. The answer to the conundrum was found in the conviction that the child’s welfare was inextricably bound up with the happiness of the custodial parent and the stability of the home that he or she could provide and that that happiness and stability would be likely to be threatened if the parent was compelled to adopt a manner of life that he or she reasonably did not want.’

4.6   Although the last sentence of Thorpe LJ in Payne at [26] seems to suggest that the primary carer’s application will be granted unless the Court concludes that it is incompatible with the welfare of the children, he clearly did not intend it to operate as a presumption.  As he emphasised:

‘40 However, there is a danger that if the regard which the court pays to the reasonable proposals of the primary carer were elevated into a legal presumption, then there would be an obvious risk of the breach of the respondent’s rights not only under article 8 but also his rights under article 6 to a fair trial. To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother’s proposals are necessarily compatible with the child’s welfare I would suggest the following discipline as a prelude to conclusion: …..’

4.8   Dame Elizabeth Butler-Sloss P in Payne also identified seven relevant factors to be weighed in the balance.

4.9   In SMM v TWM, while I together with Hartmann and Kwan JJA adopted the Payne approach, I emphasized at [32] that there is no presumption in favour of the primary carer when the all relevant factors are being considered.

4.10   Black LJ in K v K at [144] stated the Payne guidance is not a rigid principle so as to dictate a particular outcome.  She specifically stated that Thorpe LJ had not intended there should be a presumption in favour of the primary carer’s proposal to relocate.

‘[143] Even where the case concerns a true primary carer, there is no presumption that the reasonable relocation plans of that carer will be facilitated unless there is some compelling reason to the contrary, nor any similar presumption however it may be expressed.  Thorpe LJ said so in terms in Payne v Payne and it is not appropriate, therefore, to isolate other sentences from his judgment, such as the final sentence of para [26] (‘Therefore her application to relocate will be granted unless the Court concludes that it is incompatible with the welfare of the children’) for re‑elevation to a status akin to that of a determinative presumption.’

4.11   The controversy surrounding Payne is that some subsequent cases had treated Payne as prescribing a decisive emphasis on the impact on the primary carer of a refusal of leave.

4.12   This led to the more recent decisions of the English Court of Appeal such as K v K where it is stressed that, in the determination of applications for permission to relocate, the welfare of the child was the paramount consideration.  The three judges in K v K, Thorpe, Moore‑Bick and Black LJJ were of the same view on this point.

4.13   This view continues and is maintained in Re C (Internal Relocation) per Black LJ at [26] which this Court adopted in ZJ.

4.14   In Hong Kong the paramount consideration is whether the relocation is in the best interests of the child.  Hence whether a relocation application is made by a primary carer or a non primary carer does not give rise to any presumption in favour of or against the applicant.  There may be myriad reasons why such a parent applies for the relocation of the child.  Ultimately it is one of the factors to be considered in the overall assessment whether the relocation is in the best interests of the child and the weight to be attached to this factor depends on the facts of the case.  The value of Payne is that it ‘identifies a number of factors which will or may be relevant in a relocation case, explains their importance to the welfare of the child, and suggests helpful disciplines to ensure that the proper matters are considered in reaching a decision but it does not dictate the outcome of a case’ per Black LJ at [144] in K v K.  In my view Payne is not to be jettisoned. The relevant factors provide a structured framework in which the appraisal is to be made holistically.

Authorities

K v K [2011] EWCA Civ 793; [2012] Fam. 134; [2012] 2 W.L.R. 941; [2012] 2 F.L.R. 880; [2011] 3 F.C.R. 111; [2011] Fam. Law 1078.

Y (Leave to Remove from Jurisdiction), Re
[2004] 2 F.L.R. 330; [2004] Fam. Law 650; Fam Div

Payne v Payne
[2001] EWCA Civ 166; [2001] Fam. 473; [2001] 2 W.L.R. 1826; [2001] 1 F.L.R. 1052; [2001] 1 F.C.R. 425; [2001] H.R.L.R. 28; [2001] U.K.H.R.R. 484; (2001) 165 J.P.N. 466; (2001) 98(10) L.S.G. 41; (2001) 145 S.J.L.B. 61; Times, March 9, 2001; Independent, February 22, 2001; Daily Telegraph, February 27, 2001; Official Transcript; CA (Civ Div)

All Cases Cited

Sort by:

W (Children) (Relocation: Permission), Re
[2011] EWCA Civ 345; [2011] 2 F.L.R. 409; [2011] 2 F.C.R. 261; [2011] Fam. Law 693; (2011) 155(13) S.J.L.B. 30; Official Transcript; CA (Civ Div)

C v D
[2011] EWHC 335 (Fam); [2011] 2 F.L.R. 701; [2011] Fam. Law 588; Official Transcript; Fam Div

J v S (Leave to Remove)
[2010] EWHC 2098 (Fam); [2011] 1 F.L.R. 1694; [2011] Fam. Law 27; Fam Div

AR (A Child) (Relocation), Re
[2010] EWHC 1346 (Fam); [2010] 2 F.L.R. 1577; [2010] 3 F.C.R. 131; [2010] Fam. Law 932; Official Transcript; Fam Div

H (A Child), Re
[2010] EWCA Civ 915; [2010] 2 F.L.R. 1875; [2010] Fam. Law 1069; Official Transcript; CA (Civ Div)

D (Children) (Relocation: Permission), Re
[2010] EWCA Civ 50; [2010] 2 F.L.R. 1605; [2011] 2 F.C.R. 313; [2010] Fam. Law 1175; Official Transcript; CA (Civ Div)

T (A Child), Re
[2009] EWCA Civ 20; [2009] 2 All E.R. 700; [2009] 1 F.L.R. 1157; [2009] 1 F.C.R. 584; [2009] Fam. Law 294; (2009) 153(5) S.J.L.B. 27; Official Transcript; CA (Civ Div)

W (Children) (Leave to Remove), Re
[2008] EWCA Civ 538; [2008] 2 F.L.R. 1170; [2008] 2 F.C.R. 420; [2008] Fam. Law 1004; (2008) 152(22) S.J.L.B. 29; Official Transcript; CA (Civ Div)

G (Children) (Leave to Remove), Re
[2007] EWCA Civ 1497; [2008] 1 F.L.R. 1587; Official Transcript; CA (Civ Div)

Y (Leave to Remove from Jurisdiction), Re
[2004] 2 F.L.R. 330; [2004] Fam. Law 650; Fam Div

Practice Direction (CA: Citation of Authorities)
[2001] 1 W.L.R. 1001; [2001] 2 All E.R. 510; [2001] 1 Lloyd’s Rep. 725; [2001] C.P.L.R. 301; [2001] 1 F.C.R. 764; (2001) 145 S.J.L.B. 132; Times, May 1, 2001; CA (Civ Div)

Payne v Payne
[2001] EWCA Civ 166; [2001] Fam. 473; [2001] 2 W.L.R. 1826; [2001] 1 F.L.R. 1052; [2001] 1 F.C.R. 425; [2001] H.R.L.R. 28; [2001] U.K.H.R.R. 484; (2001) 165 J.P.N. 466; (2001) 98(10) L.S.G. 41; (2001) 145 S.J.L.B. 61; Times, March 9, 2001; Independent, February 22, 2001; Daily Telegraph, February 27, 2001; Official Transcript; CA (Civ Div)

Piglowska v Piglowski
[1999] 1 W.L.R. 1360; [1999] 3 All E.R. 632; [1999] 2 F.L.R. 763; [1999] 2 F.C.R. 481; [1999] Fam. Law 617; (1999) 96(27) L.S.G. 34; (1999) 143 S.J.L.B. 190; Times, June 25, 1999; Official Transcript; HL

MH v GP (Child: Emigration)
[1995] 2 F.L.R. 106; [1995] 3 F.C.R. 35; [1995] Fam. Law 542; Fam Div

Tyler v Tyler
[1989] 2 F.L.R. 158; [1989] Fam. Law 316; (1989) 153 J.P.N. 820; Times, March 1, 1989; CA (Civ Div)

Lonslow v Hennig (formerly Lonslow)
[1986] 2 F.L.R. 378; [1986] Fam. Law 303; CA (Civ Div)

Chamberlain v De La Mare
(1983) 4 F.L.R. 434; (1983) 13 Fam. Law 15; CA (Civ Div)

Nash v Nash
[1973] 2 All E.R. 704; CA (Civ Div)

Poel v Poel
[1970] 1 W.L.R. 1469; (1970) 114 S.J. 720; CA (Civ Div)

J v C
[1970] A.C. 668; [1969] 2 W.L.R. 540; [1969] 1 All E.R. 788; (1969) 113 S.J. 164; HL

Ladd v Marshall
[1954] 1 W.L.R. 1489; [1954] 3 All E.R. 745; (1954) 98 S.J. 870; CA