Court Of Appeal Reconfirms There Is No Presumption In Favour Of Primary Carers In Relocation Cases And The Best Interests Of The Child Is The Paramount Consideration In Relocation Cases – B, A v B, L [2019] HKCA 822

On 25 July 2019, the Court of Appeal handed down its reasons for judgment in an appeal brought by the Petitioner Father against the Trial Judge's decision to allow the Respondent Mother to leave Hong Kong with the two children of the family to Miami, USA.

The Court of Appeal reconfirmed that there is no presumption in favour of a primary carer and that the paramount consideration in Hong Kong is whether the relocation is in the best interests of the child.

Background

The Mother is Columbian by birth, but she emigrated to the USA in 1999 and she regarded the USA as her home. The Father is a US citizen. Both the Father and the Mother are permanent residents of Hong Kong having lived in the territory since 2008.

There are two children of the family, who were aged 7 and 5 at the time of the relocation trial in 2017.

In May 2014, as the marriage broke down, the Mother unlawfully removed the children to Miami. The Father successfully applied for the return of the children to Hong Kong under the Hague Convention, and the children returned to Hong Kong in August 2014 and have lived with the Father since then.

The Mother returned to Hong Kong in December 2014 and remained here periodically until January 2017 when she left permanently. In the meantime, in May 2016, she made her application for relocation of the Children from Hong Kong to Miami, USA.

Relocation Trial

It was disputed as to who was the primary carer of the children. The Mother maintained that she was the primary carer of the children during their infancy and the period prior to unlawful removal. The Father maintained that the Mother became more and more detached from the family and he was the primary carer with the assistance of a domestic helper.

At trial the Mother argued that it was in the children's best interests to live with her in Miami where she had the support of close family and friends (her mother, step-father and twin sister lived in Miami) and a full time job. She told the Court that the children would be entitled to free education as they were US citizens, and she had arranged medical coverage for them. Her position was that she would not return to Hong Kong in the event her application for relocation was denied.

The Father's case was that the children should remain in Hong Kong in his care and the existing state of affairs should be maintained. The children attended good schools, had a wide circle of friends and a lot of social support.

There were social investigation...