Relocation from Hong Kong to Mainland China in the Event of a Divorce

On 15 February 2022, the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Chapter 639) (the “Ordinance”) came into effect, signalling “a new milestone in mutual legal assistance” between Hong Kong and Mainland China. It is anticipated that the Ordinance will have a significant impact on cases involving cross-border marriages by facilitating the recognition and enforcement of matrimonial judgments in Hong Kong and Mainland China; thereby reducing the need for re-litigation and allowing parties access to expedient and effective judicial relief.

Jurisdiction and forum

As a preliminary requisite, parties are required to file divorce proceedings or proceedings under the Guardianship of Minors Ordinance (GMO) before filing for relocation. For Mainland Chinese nationals seeking to initiate divorce proceedings in Hong Kong who are unable to meet the requirement of three years’ habitual residence (or ordinary residence), the Hong Kong court at the outset has generally taken a restrictive approach when considering jurisdiction based on substantial connection for such parties. The status of Hong Kong permanent residence alone may be insufficient to establish jurisdiction, and weight is instead placed on actual physical presence and the length and purpose of stay in Hong Kong.

In the recent 2022 case of 朱 v 劉, despite the wife relying on evidence of the husband’s Hong Kong permanent residence and the husband remaining a taxpayer, bank account user, insurance holder, salary receiver and a contributor to the Mandatory Provident Fund (a compulsory retirement savings scheme) in Hong Kong, the court found that these points were not “put in the context of the family”. Given that the children and the husband had in late 2019 settled in Canada, by way of the children enrolling in local schools and enjoying team sports activities there, and neither party wanted the children to live in Hong Kong as a result of the divorce, the court found that the wife had failed to show the husband’s substantial connection with Hong Kong and dismissed the divorce proceedings. The Hong Kong court found the Luohu court in Shenzhen to be the most appropriate forum, with more weight given to the fact that the marital assets were situated in Mainland China. Although the children were currently settled in Canada, the Hong Kong court found that the Luohu court, which is 30 kilometres from Hong Kong, would be able to deal with both the children and finance matters, given that the parties may each be respectively seeking a relocation order to Mainland China or to remain in Canada.

However, in JQ v CLH [2022] 2 HKLRD 632, a case involving parties who were Mainland residents not living in Hong Kong, the Hong Kong Court of Appeal appears to have widened the interpretation of substantial connection such that a party maintaining a consistent economic and social presence could in some cases be sufficient to demonstrate substantial connection with Hong Kong. While the Court of Appeal stressed that they did not view their judgment as creating any precedent especially given the fact-sensitive nature of the case, it appears that there is potential for future development in this area.

While the above developments may appear to expand Hong Kong’s Family Court jurisdiction, it should be noted that under the Ordinance, if a registration application of a Mainland judgment is brought before the Hong Kong court, any proceedings in Hong Kong in respect of the same cause of action will be stayed and any new proceedings will be prohibited pending determination of the registration application and thereby minimising the risk of parallel proceedings.

Permanent relocation

If the Hong Kong court is satisfied that it has jurisdiction to process the divorce, a common children-related dispute in cross-border cases is permanent relocation. A common misunderstanding is that a permanent relocation application to take a child from Hong Kong to Mainland China is not necessary given that Hong Kong is one of the many cities within Mainland China. However, as Hong Kong’s legal system is largely separated from Mainland China and remains a common law jurisdiction, a permanent relocation application is still necessary, failing which the relocating parent may be accused of wrongful removal and/or abduction of the child from Hong Kong.

Prior to the Ordinance, there were significant problems for parents seeking the return of children wrongfully removed from Hong Kong to Mainland China as custody and relocation orders of the Hong Kong court could not be directly enforced in the Mainland (see: L v L (Child removal; PRC) [2017] HKFLR 588). Likewise, the Hong Kong courts, when considering relocation applications from Hong Kong to Mainland China, were sensitive to the issues of the enforceability of Hong Kong judgments in the mainland. In LCG v IK [2021] HKFC 120, the Hong Kong court refused a relocation application to Shenzhen citing one of the factors as being a “genuine and real chance that the orders given and/or undertakings accepted by the Hong Kong court” would not be recognised in the mainland, in which case the best interests of the child would “not be protected and/or safeguarded”.

With the commencement of the Ordinance, Hong Kong custody orders can now be enforced in Mainland China and the Hong Kong court may, in future, have more certainty and assurance that the best interests of the child can be protected when determining applications for relocation/access in Mainland China. This is especially relevant if the consent of one parent cannot be obtained to the permanent relocation, and a permanent relocation application has to be brought to the Hong Kong court as the first and paramount principle considered by the court in such an application is the best interests of the child. In determining this issue, the court will consider the factors as set out in the “welfare checklist” of the Law Reform Commission of Hong Kong Report on Custody and Access of 7 March 2005.

A factor that may be in the relocating parent’s favour is the child’s connections and familiarity with Mainland China. Even if the child has not travelled to Mainland China before, the cultural background of both Hong Kong and Mainland China is quite similar, and with Mandarin being a common teaching requirement in both local and international schools in Hong Kong, it can be argued by the relocating parent that the transition will be less onerous on the child should the application be granted. As the time taken for a permanent relocation application to be determined by the Hong Kong court would be approximately one and a half years, the relocating parent should consider bringing the child (with the other parent’s consent) to Mainland China for short trips to familiarise the child with living in Mainland China prior to bringing the application.

Pursuant to Hong Kong case law, the courts are also guided by a set of questions as set out in SMM v TWM (Relocation of a Child). A question that may be more relevant in the context of a parent seeking to permanently relocate a child from Hong Kong to Mainland China is the extent of the detriment to the left-behind parent and his or her future relationship with the child if the application were to be granted. Given Hong Kong’s close geographical proximity to Mainland China, the relocating parent can propose generous access arrangements to argue that the relocation would not negatively impact on the relationship, such as the left-behind parent travelling to Mainland China on the weekends to visit the child, as is common with most cross-border families.

However, the concern of the court that the permanent relocation may negatively affect the relationship between the left-behind parent and the child will certainly not be eased if the relocating parent in fact is and has been obstructing the meaningful development of such a relationship. In CN v LYP, whilst the mother, who was seeking to relocate the children to Dongguan, China, had proposed that the father have video access every other day and visiting access of half of each of the three long holidays, the court took note that the mother did not “acknowledge [the] father’s role in the care of the children” and “did not seem keen to involve [the] father in the children’s life or to consult [the] father on important decision[s] about the children”, which was taken into account in refusing the mother’s application and granting the father’s permanent relocation application to Singapore.

To save the time and costs involved in disputing the issue of permanent relocation in court, parents may wish to try mediation to resolve their concerns. If the parties are able to reach an agreement outside of court, a written agreement can be signed and presented to the court to be made into a binding court order.

Enforcement of orders made by the Hong Kong court in Mainland China

If permanent relocation is granted for the child to relocate to Mainland China, a primary concern of the left-behind parent may be the issue of access and how to enforce any orders concerning access made by the Hong Kong court in Mainland China. Pursuant to rule 25 of the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Rules (Chapter 639), a party can apply to the appropriate Hong Kong court for a certified copy of the relevant judgment and a certificate, which can then be produced to the relevant Mainland Chinese court for recognition and enforcement.

As explained above, the Ordinance is also very useful in the event that a child is wrongfully removed or abducted from Hong Kong to Mainland China especially as Mainland China is not a contracting state to the Hague Convention on the Civil Aspects of International Child Abduction. However, with the introduction of the Ordinance, there is now a clear mechanism to seek recognition and enforcement of a Hong Kong judgment for the return of a child to Hong Kong.

Conclusion

The Ordinance brings certainty and clarity on the law in relation to enforcement of Hong Kong judgments in Mainland China and vice versa. This is a positive development given the growing number of cross-border families who reside in Hong Kong or Mainland China and may have connections and assets in both jurisdictions. Moving forward, the authors believe that past concerns held by the Hong Kong courts regarding enforceability of custody and access orders when determining permanent relocation applications to Mainland China should be eased, thereby assisting families involved in cross-border divorces.