As the old Chinese saying goes – “even the best judges find it difficult to settle the quarrels of a family”. The same has never rung truer in family cases nowadays.
With the steady increase of international and cross border marriages, the arguments involved get even more complicated when the welfare of a child is on the line.
Add in the differences in legal systems between jurisdictions and one can imagine how much more complex the case can be.
As a renowned family practitioner once said – “Money is money and in law, there will always be solutions within the margin of fairness”. Often the same cannot be said for cases involving the care and welfare of children.
Such was the predicament in the case of LCG v IK  HKFC 120 (the “Judgment”) which both writers were involved in. It was a case where the Judge had to rule on the care and control of an 8-year-old girl and her possible relocation back to Shenzhen, China.
The case involved a married couple. The father was Mainland Chinese and the mother was from Japan. Two daughters were born out of the marriage in China – the elder daughter being 13 years old and the younger daughter being 8 years old. The family lived in Shenzhen where the children also attended school.
The marriage itself was not without its problems, with the mother alleging domestic violence and abuse by the father and the father claiming that the mother did not perform the duties of a wife/mother. However, the Judge considered the reasons for the breakdown of the marriage to be irrelevant to the determination of this case.
Eventually, the mother took both children to Hong Kong in September 2017 without the father’s knowledge. He searched for the children but was only able to locate them 5 months later, before Chinese New Year. By then, both children had enrolled into Hong Kong schools.
Having travelled to Hong Kong to meet the children, the father requested to bring them back to China during the Chinese New Year holidays. Although reluctant, the mother eventually agreed along with the date on which the children would return to Hong Kong.
But the father went back on his promise and kept the children in Shenzhen. Unable to locate them despite travelling back to China, the mother was advised to take out an application for divorce in Shenzhen.
It was through mediation conducted by the local Chinese judge (a common arrangement when parties were unable to reach agreement) that parties reached an agreement on the care arrangements: the elder daughter would remain in Shenzhen and the younger daughter would live with the mother in Hong Kong. Although it was mentioned that both parents would have access to the other child, this was never defined i.e. no precise access arrangements were set out.
Application in the Hong Kong Courts
Claiming immense difficulty in access, the father initiated wardship proceedings in the High Court in June 2019. The younger daughter was initially warded with an interim access arrangement in place, where the father and elder daughter would travel to Hong Kong bi-weekly and have overnight staying access to the younger daughter.
By the time of the application, the younger daughter had already progressed to Primary One. Due to the travel restrictions imposed as a result of COVID-19, physical access was suspended from January 2020.
The matter was later transferred to the Family Court. The father applied for relocation of the younger daughter back to Shenzhen where he would have sole custody, care and control. His reasons in support of the application include, amongst others: that he was the main carer of the younger daughter and had a close relationship with her; the mother impeded the father’s ability to access the younger daughter; the younger daughter struggled and failed to adapt to school in Hong Kong – and that this was due in part to the mother not being able to speak nor read Cantonese and traditional Chinese (although she can read and write in simplified Chinese); and importantly, if the younger daughter moved back to Shenzhen, this would allow the two siblings to be reunited. Further, as the mother was not yet a permanent resident of Hong Kong, the younger daughter’s stay was solely reliant on the mother’s employment.
On the other hand, the mother claimed that the younger daughter was well taken care of and has adapted to Hong Kong. Significantly, it was argued that there had been no material change in circumstances between the parties that merit the father’s application for relocation – inconsistent with the earlier settlement agreement noted above. The mother also feared that, if relocation were allowed, the father would cut ties with the mother and prevent her from accessing the younger daughter. There was also the difficulty of there being no method of direct enforcement of a Hong Kong Court order in Mainland China.
The Judge ruled in favour of the mother and ordered the younger daughter to remain in Hong Kong.
In reaching its decision, the Court had the assistance of three social welfare reports and two international social welfare reports. To deal with the enforcement issue, a Chinese lawyer was also jointly instructed to provide an opinion on whether relocation/custody/access made by the Hong Kong courts could be enforced in China.
As with applications involving the relocation of minor children, the Judge relied on the oft-cited authorities, including Payne v Payne  FRL 1053 and ZJ v XWN (Leave to Appeal: Child Relocation)  2 HKLRD 644:- that the best interests of the child are paramount and the exercise is one which will involve balancing all the relevant factors in order to determine which option will best achieve this.
The Court made its decision on whether to relocate the younger daughter after considering a range of factors, including (but not limited to) the parties themselves, sibling unity and the younger daughter’s alleged problems in adapting to life in Hong Kong.
Through her observations of the parties in cross examination, the Judge stated that the possibility of the non-relocating parent facing difficulty in access was a factor that she would give due consideration to. The Judge found the father’s past conduct in communicating with the mother (or lack thereof) worrying. There existed a genuine concern as to whether the father would communicate and share information with the mother about the younger daughter if relocation were allowed.
With regards to concerns about the mother possibly relocating back to Japan with the younger daughter, the Court accepted her submission that her employment was secure and that she had no intention of leaving Hong Kong (and also because Hong Kong was close to Shenzhen thus enabling the younger daughter to see her elder sister regularly and vice versa). As to the alleged inability to care for the younger daughter, the Judge found no evidence in support of this – neither did the social welfare reports raise any concerns. The Judge ultimately reached the view that there would be no obstruction on access with the father if the younger daughter were to remain.
The Judge also considered the initial reluctance of the father to attend a Children’s Dispute Resolution Hearing, who instead opted to go straight to trial. This was especially so when the parties did manage to agree on a set of access arrangements based on different possible outcomes during the CDR hearing itself which was ultimately utilised by the Judge in her Judgment.
As regards sibling unity, the Judge noted that the sisters did not grow up together historically and they only lived together for around 2.5 years. The physical distance between the siblings (i.e. Hong Kong and Shenzhen) would not negatively impact on their sibling relationship, and the use of modern electronic devices would enable continued bonding and communication.
As regards the younger daughter’s difficulty in adapting, it was all along the father’s case that she was struggling with the schooling system in Hong Kong. The Judge accepted that although the child’s performance in certain subjects was unsatisfactory, her teachers never opined that she was not adapting to school here. To the contrary, there were comments made as to her improvements. The fact that schools were closed and physical lessons suspended due to COVID-19 also meant that she had little opportunity to get used to primary school life.
More importantly, even if the younger daughter had faced difficulties in adapting, the same difficulties (if not more) would also be faced by the younger daughter if she were to relocate to Shenzhen due to the more demanding school curriculum, especially with Chinese and Mathematics (which the father said would be more difficult than in Hong Kong). It was therefore necessary to also consider the likely negative impact on the child if relocation was allowed.
Issues on Enforcement
The Judge was also faced with the task of determining how a judgment on access arrangements could be given effect.
This required the Judge to consider how an order of a Hong Kong Court (together with undertakings given by the parties on access and care arrangements) could be enforced in Mainland China, as access would also occur in Shenzhen.
The Supreme People’s Court of the PRC issued the Arrangement of the Supreme People’s Court and the Government of the HKSAR on Reciprocal and Enforcement of Civil Judgment in Matrimonial and Family Cases by the Courts of the Mainland and of the Hong Kong SAR in June 2017 (“Arrangement”), but this had yet to come into effect at the time of the Judgment.
Although the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (“Ordinance”) had been passed by the Legislative Council of Hong Kong on 5th May 2021, there had yet to be any announcement as to when it would come into effect. Even then, it would only deal with enforcing PRC judgments made in Hong Kong. In other words, the situation was one where the Chinese Courts would not directly recognise nor enforce a Hong Kong Court Order concerning family matters.
The findings of the Single Joint Expert on Chinese law opined that the parties may issue separate proceedings in China and enter into a mutual agreement which would include their agreed undertakings. However, the presiding judge would still have absolute discretion.
If the PRC judge accepted that the mutual agreement and its terms were legitimate and feasible under Chinese law, the same would be endorsed and have the same validity as a Chinese Court Order. However, if the PRC judge did not believe that any item(s) of the agreed terms could be enforced by the Chinese Courts if a party failed to honour them, the Judge could refuse to include that item.
As such, there was no certainty that the Chinese Courts would recognise and accept any orders made in, or undertakings accepted by, the Hong Kong Courts, even if the parties decided to enter into an agreement in China with the exact same terms as those ordered by the Hong Kong Courts. It was therefore in the best interests of the younger daughter that there be a way for the Hong Kong Courts to retain jurisdiction over her and to hold the parties to their undertakings. The Judge decided that the younger daughter should remain in Hong Kong with joint custody to both parents.
Nevertheless, the Judge also ordered that both parties should proceed with giving effect to the Court Order in the Chinese Courts once the Arrangement comes into effect.
As of the time of writing, there is still no time estimate as to when the Ordinance would come into effect. Regardless of COVID-19 and its continued restrictions on international travel, it is expected that matters involving fragmented families in different jurisdictions will continue to require adjudication.
This article was written in collaboration with Mr. Jonathan H.Y. Tsang, barrister at Sir Oswald Cheung’s Chambers, and was published in the Official Journal of the Law Society of Hong Kong (November 2021).