2 June 2021
In this day and age, relocation for the modern international family is a common issue that flows from expatriate families. It is recently compounded by the Covid-19 pandemic and very often the desire to return home when relationships based abroad break down. How would making a plan to relocate to a foreign jurisdiction be viewed by the courts in Hong Kong and Singapore in light of the Covid-19 situation? The welfare of the child is the common theme, but it is interesting to see how the courts have dealt with this issue in considering relocation applications and what parties should consider.
Hong Kong Court of Appeal case
Last month, the Court of Appeal in Hong Kong handed down a decision which confirmed that an arrangement made to relocate a child during the Covid-19 pandemic can be a risky business.
In this judgement, the Court overturned a decision of the family court to allow the relocation of a child, aged 5, from Hong Kong to Singapore. The judgement was given on the basis that there would be a travel bubble between the two jurisdictions which would allow for regular contact with the father. The travel bubble burst the day before the Court of Appeal hearing, with Singapore tightening its rules on control of its borders, including with Hong Kong. The arrangement which the family judge had put in place, whereby the father can visit the child in Singapore every month, was no longer feasible.
In this case it did not assist the mother that she did not have a clear plan for the child in Singapore. Their accommodation plans were not settled and there were serious concerns over the immigration status of the mother and child, with the move dependent on the child’s student visa (which the boyfriend would have to guarantee) and the mother applying for a work visa which was dependent on her relationship with the boyfriend. Until then, the mother would be on a long term visitor visa. This was hardly practical when Singapore has strict immigration controls in place for anyone other than citizens or permanent residents.
The court did not consider that it was in the child’s best interests to be uplifted from her present circumstances, where she had always lived and where she had extended family on both sides, without further investigation into her welfare and best interests nor safeguards and protective measures in place. She had not met the new partner in person, nor his children from his previous marriage. The social welfare officer had recommended that the relocation be delayed to allow the mother and her boyfriend to focus on their relationship, as so much depended on it A single joint expert was appointed who was also of the view that the move was premature. Although the Judge was not required to follow the recommendation of the social welfare officer, the fact that this officer had known the family for over two years was significant and the recommendation, in view of the move being predicated on the mother’s relationship and employment status, should have been given due consideration. If the Judge were not to follow an experienced welfare officer’s recommendation, clear and cogent reasons must be given.
Ultimately the Court of Appeal held that the mother’s application for relocation “was rushed and pre-mature and made during a period with the pandemic having no end in sight and normal frequent travel was not possible, and her application for relocation should not have been allowed at that stage…”
Singapore High Court case
The Singapore High Court also had an opportunity to consider this matter in 2020.
In UYK v UYJ , [2020] 5 SLR 772, Debbie Ong J heard an appeal by a father against the Family Court’s decision to grant leave to the mother to relocate with the parties’ child to the UK. The parents of the child were unmarried, and had an on-again-off-again relationship for many years since 2004. Their child was born in 2014. At that time, the mother lived in the UK whilst the father lived in Monaco for tax reasons. The parties spent time together with the child travelling back and forth between their respective countries of residence. At the end of 2017, the parties decided to try to live together for the sake of their relationship and the child. The parties executed a joint letter of intention stating the reasons for their intended move, which specified that the mother would move back to the UK if the parties’ relationship failed. In 2018, the parties moved to Singapore. However, the relationship broke down shortly after, and the mother sought leave to relocate with their child back to the UK.
At first instance, the Family Court allowed the relocation. The Family Court’s decision was made at the end of 2019, before Covid-19 had become a pandemic. The father’s appeal was however heard between February 2020 to June 2020. By this time, the Covid-19 pandemic was at its peak, and Singapore was locked down under its “Circuit Breaker” period from 7 April to 1 June 2020.
Because of the worsening Covid-19 situation, the father raised a new argument on appeal, i.e. that it would not be in the child’s best interests to relocate to the UK where Covid-19 was spreading uncontrollably.
Ong J dismissed the appeal and affirmed the Family Court’s decision to allow the mother to relocate. Ong J noted that the parties had no connection to Singapore, and that Singapore was just one of the parties’ 4 choices. The child himself also had no connection to Singapore, having lived in Singapore for only 10 months before the application for relocation was filed. The child was then aged 4 years old. The Judge appreciated that the child would be returning to the UK to the home he used to live in, and will be re-enrolling in the school he used to study at. The child’s return to these familiar environs was a factor that weighed heavily in favour of allowing relocation.
The Judge also gave weight to the joint letter of intention, noting that it was clear to both parties that the mother intended to move back to the UK if their relationship failed.
Finally, in respect of Covid-19, the Judge noted that the situation was evolving very quickly and that new facts were emerging every week. The Judge said that she could not give ‘inordinate weight’ to such circumstances because any order that is based on such fluid circumstances would very quickly become outdated. The Judge’s view was that the child’s best interest must remain the primary consideration, and that if the child’s long-term best interests warranted a return to the UK, the benefits to the child of relocating would last beyond the pandemic.
In doing so, the Court also accepted the notion that relocation ultimately concerns the child’s long term interests with ramifications that last far beyond the relative uncertainty of the Covid-19 situation and by implication the ‘short-term’ impact of the ongoing pandemic. If the balancing exercise undertaken in any relocation application weighed in favour of relocation being in the child’s best welfare, the Covid-19 situation alone would not be a bar.
The Judge also noted, in response to the father’s criticism of the UK’s response to Covid-19, that the Court would not compare the adequacy and sufficiency of how different countries respond to Covid-19.
Conclusion
The takeaway from this would be to think very carefully before deciding whether relocation is a good idea during this pandemic and if so to ensure that the children’s best interests are at heart and the arrangements for their future in the new location are practical and the best that can be devised in the circumstances. The parent seeking to remove a child should ask whether the proposed access arrangements are feasible and whether they can realistically be implemented whilst the pandemic is ongoing. As in the Hong Kong case, relocation applications may be rejected for uncertainty and prematurity.
The pandemic in and of itself would not be an obstacle against relocation where a balancing exercise of all relevant factors point in favour of relocation, as demonstrated by the Singapore case. A lack of a clear care plan and the inadequacy of the reasons for relocation would generally weight against relocation. The child’s welfare must be considered holistically in all relocation applications. It is generally not in a child’s interest to be away from a parent, or a family support structure and particularly so when travel bans and general travel uncertainty exists and normal access arrangements would prove to be impossible.
For further information, please contact:
Shaun Ho, Senior Legal Associate, Withersworldwide
shaun.ho@witherskhattarwong.com
