Should I stay or should I go? International relocation of children
By Winnie Chow, Collaborative Practitioner, Partner of CRB
https://www.crb.com.hk/en/winnie-chow
The decision whether to relocate with the children after a relationship breaks down is often the most polarizing situation that separating parents encounter. It is either stay or go; there is usually no middle ground, allowing for a compromise between the country in which one parent wishes to remain, and the other country to which the other parent wants to relocate. Nor can you create a “Solomon’s baby” situation and split the child.
If you find yourself in this difficult situation, please note there are several issues of which you shouldbe aware:-
1. You cannot just take a child and go overseas without the other parent’s consent or a Court Order. This applies not only to relocation but also in respect of a holiday.
2. One parent can always try to stop the other parent from taking a child overseas with an Order from the Court prohibiting the child’s departure. Likewise, a parent can seek a child’s return to Hong Kong via an international treaty called the Hague Convention on the Civil Aspects of International Child Abduction. In some countries, there can be criminal sanctions arising from a “wrongful’’ removal or retention of a child.
3. Even if your relocation plan is agreed, you should have it clearly recorded in writing.
4. You should encourage and facilitate contact between the Child and the parent staying behind. It is a child’s right to have both parents involved in their upbringing and it is in a Child’s best interest to have a positive relationship with both parents.
So how best to seek a resolution for a potential relocation?
Whichever way you decide to proceed with the resolution process, the parent seeking to relocate should put together a concrete plan of what is being proposed in respect of the relocation. This should include a clear and fixed destination, proposed living arrangements, schooling options, child care support, infrastructure relating to the child’s wellbeing, such as medical and dental services, available recreational facilities, sporting/arts opportunities, and most importantly, how the child’s relationship with the parent who is staying behind will be maintained, and their contact facilitated. A relocation is a decision which affects the whole family, and warrants careful consideration. The decision should be guided by what is really in the child’s best interest rather than what is best for either of the parents. There are many factors to balance in the decision making process, to include, but not limited to, family relationships (not just with the parents but also with the extended families), the ability of the parent staying behind and/or the child to travel in order to see each other, reasons for the move, financial considerations, work opportunities, or new relationships/second families. There is no formulaic approach and each case turns on its own facts.
An application to the Court is only one of the options but should be, if possible, the last resort. Making an application to the Court to relocate is a very costly exercise, not just financially, but emotionally. It is also time-consuming, with the potential of a two-tier process. Usually the parties will have to go through the children dispute resoluton process, and if no agreement can be reached, a substantive trial will be conducted whereupon the Court will make an adjudication. This may be followed by an appeal by the aggrieved party. Further, litigation is a highly intrusive experience for the family. It usually involves an investigation by the Social Welfare Department and/or by the International Social Services, requiring home visits, interviews with the parents, the children and related carers. Additionally, a separate report in respect of the psychological assessment of the family may be ordered.
Fortunately, there are a number of dispute resolution processes available outside of Court to help you come to an arrangement that works for your family. They include Collaborative Practice, mediation, child-inclusive mediation, Parenting Cooordination and/or round table meetings between the parties and their lawyers.
If this is something you wish to explore, please contact the CRB team.
This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with above.
