Family Law: Hong Kong
Leave to remove/applications to take a child out of the jurisdiction
When a court in Hong Kong makes a custody order, it also directs that the child or children cannot be removed from Hong Kong without leave of the court. There is therefore a positive requirement to make an application to the court for leave to permanently remove a child or children from the jurisdiction of Hong Kong.
In SMM v TWM [CACV 209/2009], the Court of Appeal concluded that the principles in Payne v Payne  Fam 473 should be applied and adopted in Hong Kong. The two propositions applied by the Hong Kong court are that:
The welfare of the child is the paramount consideration.
Refusing the primary carer’s reasonable proposals for relocation is likely to impact detrimentally on the welfare of the child.
It is usually the primary carer parent who makes the application and generally the motivation arises out of the parent’s remarriage or an urge to return home. The other parent’s opposition usually centres on a reduction in contact, influence and being a part of the child’s life.
The removing parent’s application must be:
Genuine and not motivated by a selfish desire to exclude the other parent from the child’s life.
Realistic, well thought out and investigated.
Assuming the above conditions are satisfied, the remaining parent’s opposition is given careful consideration including the extent of the detriment to him or her and his or her future relationship with the child or children in the event of removal. The impact on the removing parent of a refusal of his or her application is also considered. The child’s welfare is ultimately the paramount consideration.