Can I take my children overseas for holiday during divorce?

After the relaxation of travel restrictions, many Hong Kong residents plan to travel abroad during Christmas and New Year holidays. Bringing children abroad for holidays overseas is easy for most people, but it is not always the case with divorcing parents who do not exactly see eye to eye with each other.

Temporary Removal Order

In the event that parents cannot agree with each other for the children to travel overseas temporarily, they will need to seek assistance from the Court for an order to temporarily remove the children from Hong Kong.

The Court, when dealing with matters regarding children, shall regard the best interests of the children as the first and paramount consideration, and in having such regard, shall also give due consideration to the wishes of the children if, having regard to their age and understanding and to the circumstances of the case, it is practicable to do so. The best interest principle applies to the application for temporary removal. The Court will consider all circumstances of the case and decide on whether it is to the children’s best interest to travel.

Applications for temporary removal of the child of the family out of Hong Kong shall be made by way of summons supported by an affidavit to the court. Details of the proposed overseas trip should be set out in details for the Court to consider, including the reasons and purposes for the travel, dates and time and destinations of the travel with detailed itinerary, accommodation arrangements, means and details of contact with the children and any nearby facilities that can cater for the Children’s special needs if any, as well as any factors and circumstances that the Court should consider in terms of the safety and best interest of the children, such as whether the destination of the proposed trip is safe for the children etc.. The parent making the application should also set out why it is to the children’s best interest to travel. He or she should also propose access arrangement for the children to have regular contact with the non-travelling parents during the trip such as regular video calls or phone calls. The travelling parent should also give an undertaking to the Court that he or she will bring the children back to Hong Kong after the trip or when called upon to do so by the Court in Hong Kong.

If parents are planning to take their children away from Hong Kong during the Covid-19 pandemic, they should also inform the Court whether the Children have been fully vaccinated, the situation of the pandemic in the proposed destination city as well as quarantine requirements as they are something that will have an effect on the children’s well-being, health and safety which the Court would consider.

Non removal order

The non-travelling parent, with the best interest of the children at heart, should not unreasonably oppose to the children from travelling if it is indeed beneficial or necessary for them to do so without any real risk to their health and safety.

If the non-travelling parent is concerned that it is not safe for the children to travel out of Hong Kong or that there is a risk that the children will not be returned to Hong Kong or that it is against their best interest to travel, and if he or she is worried that the children will be taken out of Hong Kong by the other parent without his or her consent, he or she can make an application with the Court for a non-removal order, i.e. prohibiting the children to be taken out of Hong Kong. This will again need to be done by way of a summons and supporting affidavit setting out the reasons for the application. Once a non-removal order is obtained from the Court, this should be served on the Immigration Department for them to update their records so that they will be able to stop the children from leaving Hong Kong at all the exit points, including the airport.

Planning is essential

It is always advisable for parents to plan ahead regarding overseas trips with their children if they can foresee opposition from the other party. Although it will generally be dealt with on an urgent basis, it will still take time for the preparation of the application as well as for the court to deal with the application.