Worldwide: 上诉法院再次重申,在搬迁案件中将不做出有利于主要抚养人的推定,

Last Updated: 20 September 2019
Article by Caroline McNally and Catherine Tso

上诉法院再次重申,在搬迁案件中将不做出有利于主要抚养人的推定,并且在搬迁案件中,孩子的福祉应当是主要考虑因素 – B, A 诉 B, L [2019] HKCA 822

关于父方上诉人上诉反对初审法官允许母方应诉人带两名婚生子女离开香港前往美国迈阿密一案,上诉法院于 2019 年 7 月 25 日给出判决理由。

上诉法院再次重申,将不做出有利于主要抚养人的推定,香港法庭的主要考虑因素只能是搬迁是否符合孩子的最大利益。

背景

母方出生在哥伦比亚,后于 1999 年移民美国,并将美国视为其母国。父方为美国公民。父母双方自 2008 年起获得香港永久居留权。

在 2017 年进行搬迁审理时,二人有两名婚生子女,分别为 7 岁和 5 岁。

2014 年 5 月,由于双方婚姻破裂,母方将孩子非法带往迈阿密。父方依据海牙公约的规定成功申请将孩子带回香港,孩子于 2014 年 8 月返回香港,此后与父方同住。

母方于 2014 年 12 月返回香港,居住了一段时间后,于 2017 年 1 月永久性离开。同时,2016 年 5 月,母方申请将孩子由香港迁往美国迈阿密。

搬迁审理

双方争论的焦点为谁才是孩子的主要抚养人。母方坚称在孩子婴幼儿时期以及非法迁离之前的时间里,自己才是孩子的主要抚养人。父方则声称,母方对家庭越来越不管不顾,是自己在家政人员的帮助下承担了主要抚养人的责任。

在审理中,母方声称自己在迈阿密有近亲属和朋友(包括生活在迈阿密的母亲、继父和双胞胎姐姐)的帮忙,让孩子一同前往迈阿密也符合孩子的最大利益。母方告诉法庭,孩子是美国公民,可以享受免费的教育,她还能为孩子安排医保福利。母方主张,如果搬迁申请被拒绝,将不再返回香港。

父方的主张为孩子应当留在香港由自己照看,一切维持现状。孩子上的学校很好,有自己的朋友圈,还有很多社会上的支持。

庭审中有香港社会福利部和迈阿密社会福利部的社会调查报告。报告的意见互相矛盾。香港的报告建议两名孩子应留在香港与父方同住,而美国的报告则建议应当允许搬迁。

初审法官参考了 Payne 诉 Payne [2001] Fam 473 (上诉法院在 SMM 诉 TWM (儿童搬迁) [2010] 4 HKLRD 37 一案中曾予以采纳)一案中的判决,决定允许搬迁。

上诉

父方提出上诉,获得初审法官的批准,因为初审法官认为,非抚养家长提出的搬迁申请,可能需要上诉法院的进一步指导。

在初审到上诉开庭的这段时间内,母方的情况出现重大变化,母方携新的未婚夫从迈阿密迁往圣地亚哥,并已怀孕,预产期为 2019 年 10 月。

这种重大情况变化,使得初审法官的决定丧失了事实基础,因此上诉法院允许了父亲的上诉请求。此外,法庭也不了解母方在圣地亚哥的现状及其对孩子未来的计划安排。

搬迁法律

为了给法律从业者提供指导,上诉法院认真分析了 Payne 一案所导致的争议,后续有很多案件认为, Payne 一案提出了应当允许主要抚养人(通常为母方)搬迁申请的推定,因为拒绝母方的申请将可能不利于受抚养的子女。

在英格兰和威尔士的近期判决澄清了这样的立场,在决定是否允许搬迁的案件中,孩子应当为主要考虑因素。

在近期香港 ZJ 诉 XWN [2018] 3 HKLRD 644 一案中(针对允许迁往澳大利亚的判决而提出的上诉) ,香港上诉法院采纳了英国上诉法院 Re C (一名子女) (国内搬迁) [2016] Fam 253 案件中的决定,此案中也秉持是否允许搬迁应当以孩子的福祉为主要考虑因素的立场。 Payne 等过往案例的指导有助于法官确定哪些才是重要因素。

在本案中,上述法院再次重申搬迁案件中的以下相关原则:

  1. 搬迁应当以是否符合孩子的福祉为主要考虑因素。
  2. 提出搬迁申请的无论是主要抚养人还是非主要抚养人,均不能做出有利于或不利于申请人的推定。这只是评估搬迁是否符合孩子最大利益的因素之一,该因素的权重应当视案件的具体情况而定。
  3. 同时也不能对 Payne 一案视而不见,因为此案确定了搬迁案件中都有哪些相关因素。此案还提供了结构化的评估框架,决定是否允许搬迁的评估一定要进行全面考量。

结语

从此项最新决定中可以得出的结论就是,不得做出有利于主要抚养家长的推定。法院将全面分析各种相关因素,再决定搬迁是否符合孩子的最大利益。

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