05 July 2022 - Article
The COVID-19 virus has thrown up many challenges for those living and working in Hong Kong this year. Not least of these is the closure of the schools, which are set to be closed until April, only opening after the Easter holidays in mid-April. It is anticipated that schools will re-open on 20th April 2020, but parents are skeptical whether or not this will happen. Many parents have left, particularly if they have contacts or family out of Hong Kong, rather than struggle with bored children and home schooling in apartments without much outdoor space. This has proven to be particularly difficult for working parents who are on the one hand trying to balance their busy work routine and schedule conference calls whilst assisting with home schooling and the educational needs of their children. One can see the attraction of setting off abroad and sitting out the virus somewhere else.
Life gets even more tricky however if the parents are in the process of divorce or separation. In such circumstances it is not possible to leave Hong Kong with children without the consent of the other parent, and where there is conflict, consent may not be forthcoming. The other party may argue that it is not safe to fly, that the virus is spreading outside Hong Kong and, whereas it may be more contained here, it is spreading in many other countries. There are also arguments that if the wife (usually) and children leave and set up comfortably in another country, they may not want to come back. This in turn can lead to problems for the courts to decide where the children can ultimately live, if they have been away for a sufficient amount of time to establish their habitual residence outside Hong Kong.
There are safeguards to removing a child from Hong Kong against the will of the “left behind” parent. Not surprisingly, there is a significant difference between wanting to take the child out of Hong Kong for a holiday, or for a fixed period, and wanting to leave permanently.
Normally with a request to leave Hong Kong for a holiday, the parent wanting to go should ask the other party and if he or she consents, a consent summons is filed with the court. These applications are normally agreed after the parent taking the children provides an undertaking to return them on a certain date and this will be recorded in the Court Order. The court will have the best interests of the child in mind and generally it is considered a good thing for children to have holidays. Special consideration may be given in cases where there is doubt that the parent will return with the children – particularly if that country is not a member of the Hague Convention.
Hong Kong is a signatory to the Hague Convention which is an international convention relating to the abduction of children. If a child is removed from his home without the consent of the other parent to another country who has signed the Hague Convention, there is a procedure to bring the child back as soon as possible. This can be traumatic for all involved – so parents really do need to get the consent of the other party or an order of court to go. Accusations of kidnapping can weigh heavily against a party seeking ultimate custody, care and control of the children.
To permanently remove a child from Hong Kong, the written consent of the other party is required and a clear future plan for the child needs to be given to the court before leave will be given. A child who is the subject of a matrimonial dispute cannot be taken permanently out of Hong Kong without this leave of the court.
Where there is a dispute, the usual remedy is to make an application to the court. Recently, there has been the added complication that the courts did not re-open after the Chinese New Year holidays. The Judiciary has recently announced that from 2 March 2020, the Family Court would be taking a progressive and staggered resumption approach to hearings and court applications, hearing urgent matters first. The Family Court Registry has not formally opened yet. The Judges are presently dealing with hearings that have not taken place since after the Chinese New Year holiday and therefore hearings that have been missed will need to be re-listed with the Court indicating that Judges would deal with all urgent matters first.
Applications such as a variation of access are not considered urgent and the hearing of such matters may take some time to come before the courts now, which is frustrating for both parents and not in the best interest of the children who clearly need the stability of knowing when they are seeing their parents.
Currently we are dealing with numerous cases of parents who have decided to extend holidays abroad with the children to avoid returning to the situation in Hong Kong. This also effects access as it means that the “left behind” parent, with or without their consent, will not be able to see their children in accordance with any usual access arrangements that are in place. It would also mean that parents will need to communicate and agree on how “make up access” should take place, as there is likely to be an impact on any agreed Easter and summer holiday arrangements.
We are also dealing with a case where an agreement has been reached in respect of a permanent relocation from Hong Kong, but on a certain date. Due to the unstable and unexpected situation in Hong Kong and the extended closure of schools, parties are forced to re-negotiate their agreement due to their desire to postpone their permanent relocation. Renegotiating agreements is expensive and emotionally draining, particularly those cases involving the permanent relocation of children.
It is a very difficult situation for everyone in Hong Kong, and in particular families, as the Covid-19 situation continues to evolve and spread across continents. It is difficult to predict how long it will take for the virus to be contained and eradicated.
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