Financial considerations in child removal cases

As an international city, Hong Kong has more than its fair share of child removal applications through the Family Courts. Many of its citizens originate from overseas, from all over the world, but in recent years, particularly from Mainland China with whom Hong Kong has increasingly strong ties.

Child removal applications are always challenging, and it is for the court to decide whether moving a child from their place of habitual residence is going to be in their best interest. This is the paramount and central consideration in any removal application. How does the court decide what will be in the child's best interest and what if the parent with care and control cannot afford to stay in Hong Kong, or has an opportunity to work overseas? This article will consider to what extent a court will find such arguments persuasive, with reference to recent Hong Kong cases.

Financial considerations will be one of a number of factors a court will take into account, under the best interest principle. It used to be the case that the primary carer would be able to argue that a move 'home' would be in the children's best interest because not doing so would affect the carer to such a degree that this would adversely affect the children. It is still the case that the bar is set lower for a primary carer moving home, but this is normally seen within the context of a welfare checklist regularly referred to by the court in determining the children's best interest. The welfare checklist is not enshrined in statue, but the Judges regularly refer to it. The list includes consideration of the child’s ascertainable views; the child’s physical, emotional and educational needs; the child's status quo and the consequent effect should this be disturbed; any harm the child may suffer (either from moving or remaining); the relative capability of each of the parents; and the nature of the children’s relationship with each parent. Financial considerations may play into a number of these factors. The court would not want to see a deterioration of the child's standard of living, where possible. In removal cases the court will order a social welfare report for Hong Kong as well as an international welfare report in the proposed overseas country. 

In England and Wales, the welfare checklist is enshrined in statute, and the only authentic principle in determining the outcome is the paramount welfare of the child. The court undertakes a comparative evaluation of the options available, and the assessment is the same regardless of where the proposed move is to

An important practical factor a court will take into account is whether there is a well-thought-out plan in place for the children when they move, including accommodation, education and family support in the new location. The court will also examine the motivation for the move or the left behind' parent's motivation for refusing consent to leave. Were the motivations on both sides genuine or generated by a selfish desire to exclude the other parent? The court will also consider the impact on the left behind parent – in particular how much contact that party will have with the child after the proposed move. Similar considerations are prevalent in England and Wales and Hong Kong courts regularly cite English cases.

There have been a number of cases where the court asked whether the plan made practical financial sense for the family as a whole. It may be that the primary carer cannot remain and work in Hong Kong following a divorce or separation. Where there are work visa issues and opportunities at 'home' or elsewhere, the court may consider this to be a determinative factor. In one case, the family court found that restricting the mother to remain in Hong Kong when she could not work or study to enhance her earning capacity over time, would be 'devastating' for her and therefore not in the best interests of the children. [IDC v SSA [2015] HKFLR 404].

However, more recently the Court of Appeal [RV v AA [2022] HKCA 89] held that the family judge placed too much emphasis on financial considerations. In that case, the mother and primary carer wanted to move back to India, although the marriage had been entirely in Hong Kong and the children had been born and brought up in Hong Kong. The mother was not returning 'home' although she was Indian. The wife had argued that, since the family had suffered a financial loss and there were arguments relating to the dissipation of family funds, she and the children would be more financially secure in India where the cost of living was lower. The Court of Appeal did not find that there was an urgent financial need to relocate, and it was in the children's best interests to remain in Hong Kong and complete their education. The children in that case were also teenagers and did not wish to move. It was said that the financial considerations had been given too much weight with too little evidence to prove it and that, if these considerations were taken out, the trial judge would have respected the children's wishes. 

What happens if a parent wishes to relocate to a country where the cost of living is higher? In a very recent case, Withers acted for a father who sought to challenge a consent relocation order that allowed the mother to move with the child to Australia to live with her new spouse. The father, who had been bearing most of the child’s expenses through child maintenance, had suffered a significant recent reduction in income. As a result, he argued that he could no longer afford the higher cost of living associated with the child residing in Australia. He also applied for a downward variation of child maintenance.

In considering the matter, the Court emphasised that the child’s financial support in Australia was a genuine and pressing concern. Although the mother disputed the extent of the father's alleged reduction in income, the Court indicated that some form of financial reassurance would be necessary. Specifically, if the Court ultimately accepted the father’s downward variation application, the mother would need to demonstrate that any shortfall in the child’s expenses would be adequately met. To address this, the mother’s new spouse provided an undertaking to the Court confirming that he would cover any funding shortfall.

This illustrates how the Court approaches relocation applications where the proposed move will lead to increased child-related expenses. Where affordability may be in doubt, applicants are encouraged to put forward a “Plan B” – a contingency arrangement that offers the Court a safety net should it find that the parties cannot maintain the child’s standard of living post relocation. Practically speaking, such arrangements often involve financial assistance from third parties, such as parents, relatives, or new partners. Naturally, involving additional financial supporters can also affect the wider financial landscape, particularly if financial provision is in issue between the parties.

Applicants should therefore work closely with their legal advisers to assess how their positions in the child proceedings and the financial proceedings interact, ensuring that their overall strategy remains coherent and aligned with their priorities.