United States: Court Of Appeal Reconfirms There Is No Presumption In Favour Of Primary Carers In Relocation Cases And The Best Interests Of The Child Is The Paramount Consideration In Relocation Cases – B, A v B, L [2019] HKCA 822

Last Updated: July 31 2019
Article by Caroline McNally and Catherine Tso

On 25 July 2019, the Court of Appeal handed down its reasons for judgment in an appeal brought by the Petitioner Father against the Trial Judge's decision to allow the Respondent Mother to leave Hong Kong with the two children of the family to Miami, USA.

The Court of Appeal reconfirmed that there is no presumption in favour of a primary carer and that the paramount consideration in Hong Kong is whether the relocation is in the best interests of the child.


The Mother is Columbian by birth, but she emigrated to the USA in 1999 and she regarded the USA as her home. The Father is a US citizen.  Both the Father and the Mother are permanent residents of Hong Kong having lived in the territory since 2008.

There are two children of the family, who were aged 7 and 5 at the time of the relocation trial in 2017.

In May 2014, as the marriage broke down, the Mother unlawfully removed the children to Miami. The Father successfully applied for the return of the children to Hong Kong under the Hague Convention, and the children returned to Hong Kong in August 2014 and have lived with the Father since then.

The Mother returned to Hong Kong in December 2014 and remained here periodically until January 2017 when she left permanently. In the meantime, in May 2016, she made her application for relocation of the Children from Hong Kong to Miami, USA.

Relocation Trial

It was disputed as to who was the primary carer of the children. The Mother maintained that she was the primary carer of the children during their infancy and the period prior to unlawful removal. The Father maintained that the Mother became more and more detached from the family and he was the primary carer with the assistance of a domestic helper.

At trial the Mother argued that it was in the children's best interests to live with her in Miami where she had the support of close family and friends (her mother, step-father and twin sister lived in Miami) and a full time job.  She told the Court that the children would be entitled to free education as they were US citizens, and she had arranged medical coverage for them. Her position was that she would not return to Hong Kong in the event her application for relocation was denied.

The Father's case was that the children should remain in Hong Kong in his care and the existing state of affairs should be maintained. The children attended good schools, had a wide circle of friends and a lot of social support.

There were social investigation reports from the Hong Kong Social Welfare Department and the Social Welfare Department in Miami. The reports had contradicting recommendations. The Hong Kong reports recommended that the two children should stay in Hong Kong with the Father, while the international report recommended the relocation be granted.

The Trial Judge referred to Payne v Payne [2001] Fam 473 (adopted by the Court of Appeal in SMM v TWM (Child Relocation) [2010] 4 HKLRD 37) and allowed relocation.

The Appeal

The Father appealed and the Trial Judge granted leave to appeal, as she considered that further guidance from the Court of Appeal may be needed in relocation applications made by non-caretaking parents.

Between the date of the Trial and the hearing of the Appeal, there had been a drastic change of circumstances of the Mother as she had moved from Miami to San Diego with her new fiancé and they are expecting a baby in October 2019.

The Court of Appeal allowed the Father's appeal based on the drastic change of circumstances, which vitiated the foundation of the Trial Judge's decision.  Moreover, there was a lack of information on the Mother's current situation in San Diego and her plans for the children.

The law on relocation

As a helpful guide to practitioners, the Court of Appeal considered the controversy which had arisen after Payne, where some subsequent cases have treated Payne as setting a presumption that the primary carer (usually the mother) would be allowed to relocate, as the consequence of refusing her application would impact detrimentally on the welfare of her dependent children.

More recent decisions in England and Wales have subsequently clarified the position that the welfare of the child was the paramount consideration in determining applications for permission to relocate.

In the recent Hong Kong case of ZJ v XWN [2018] 3 HKLRD 644 (concerning an application for leave to appeal against a judgment allowing relocation to Australia) the Hong Kong Court of Appeal adopted the English Court of Appeal case of Re C (A Child) (Internal Relocation) [2016] Fam 253, which held that the only principle to be applied when determining a relocation application is that the welfare of the child is paramount. Guidance from earlier cases, such as Payne, were valuable in so far as it helps judges to identify factors which are likely to be of importance.

In this case, the Court of Appeal reconfirmed the following principles in relation to relocation cases:

  1. The paramount consideration is whether the relocation is in the best interest of the child.
  2. Whether a relocation application is made by a primary carer or non primary carer does not give rise to any presumption in favour of or against the applicant. It is one of the factors to be considered in the overall assessment of whether relocation is in the best interests of the child, and the weight to be attached to this factor depends on the facts of the case.
  3. Payne should not be disregarded as it identifies factors which will or may be relevant in a relocation case. It can also provide a structured framework in which the appraisal of the relocation application is to be made holistically.


The conclusion to be drawn from this latest decision is that there is no presumption in favour of the primary carer parent.  The court will conduct a holistic analysis of all the relevant factors before making its decision of whether relocation will operate in the child's best interests.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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