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Expert Insights

23 December 2021

“You have a reason to leave this place, but I don’t.” – Ji-Yeong, Squid Game

During the Christmas and New Year holidays, Netflix fans may opt to watch (or re-watch) the popular series, Squid Game, whereby Seong Gi-Hun chooses to participate in the game after feeling he had no say in his daughter’s relocation to the USA. If he had taken advice from a family lawyer before choosing to participate, the outcome may have been very different.

In Hong Kong, the law protects parents who find themselves in a similar situation to Gi-Hun. If one parent wishes to permanently relocate with their child to the disagreement of the other parent, an application should be issued with the court, forthwith.

Following a divorce, parents are often granted with “joint custody”. This means that all major decisions concerning their children’s lives, such as their education, medical, religion, and permanent relocation, will require both parties’ consent. Even if “sole custody” is granted to one parent, this does not provide them with carte blanche over their children. The non-custodial parent still retains the right to be consulted on all matters affecting their children and to issue an appropriate application with the court, whenever necessary. This applies for unmarried partners as well. Even if an unmarried father has yet to apply for parental rights over their child, the mother should issue a proper application to the court for relocation, instead of taking the matter into her own hands.

As this is a life-changing experience for the family, the court will not treat such an application lightly. Other than a child’s best interests being their paramount concern, the court will also reflect on the impact on the respective parents. The proposals put forward in support of the relocation should be realistic and well-researched. The respective party’s motivation for and against the relocation will also be heavily scrutinised. Applications issued with a desire to exclude the stay-behind parent from a child’s life will not be granted. Access arrangements between the child and the stay-behind parent should, also, be carefully thought out.

If a child is removed or retained from their habitual residence of Hong Kong to a foreign jurisdiction by one parent, the stay-behind parent may apply for assistance in securing the return of the child by triggering abduction proceedings under the Hague Convention on the Civil Aspects of International Child Abduction.

Whilst Gi-Hun performed well in the game, it came at great personal cost. Many people will resonate with his feelings of desperation and helplessness, particularly in relation to childcare arrangements. Despite it being the holiday season, consulting a family lawyer at an early stage is always a prudent approach when dealing with such arrangements and will help avoid problems in the new year, or at a later stage.

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