Lrsw (also known as Lrw) v. Jar

FCMC 11561 / 2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11561 OF 2014

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J U D G M E N T
( Education )

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Introduction

1.This is an application by the Petitioner father that:

1.   The Petitioner do have leave to confirm and accept a school place for the academic year 2016/17 onwards for the child of the family, HRW, a boy born on XX July 2011 (“H”) at one of the following schools which teach predominantly in the English language, as is deemed appropriate to H’s needs by the court:-

a. German Swiss International School (English stream);

b. English Schools Foundation schools (Glenealy)

c. French International School (International/English stream);

d. Canadian International School;

e. Korean International School (English stream);

f. Hong Kong International School;

g. Nord Anglia International School;

h. Australian International School

2.   The Petitioner’s time with H be extended in a manner which the Court deems appropriate and compatible with H’s needs, in particular, commencing with the extension of the Petitioner’s current access with H on Mondays and/or other time spent with H during other term-time.

However by the time that the application came on for hearing the issue had narrowed down so that the matter now to be determined by the court is whether or not H should attend the German stream of the GSIS or Glenealy ESF.

2.H will be 5 years old on the XX July. He is presently completing the second year of kindergarten in the German stream of the German Swiss International School. The respondent mother wishes him to remain there, although she does now concede that H may switch into the English stream of the same school at some appropriate point in the future. H will need to pass the requisite assessment in order to do so. It is not clear when that might be. At present the GSIS have said that H will need to repeat a year in kindergarten before he progresses to the German pre-school in any event. In other words they wish to hold him back for a year. The petitioner father wishes H to attend P1 at Glenealy English Schools Foundation Primary school with effect from August 2016. He has secured a place for H at that school.

The issue

3.As indicated above then the only issue to be decided at this point in time is whether or not the German stream of the GSIS or Glenealy ESF is the most suitable school for H to attend. The second part of the father’s application which relates to increased time with H leading possibly to a 50:50 split, will come back before the court at a later date.    

Background

4.In so far as the parties back ground is concerned I have taken the liberty, in the interests of saving some time, of referring to the first part of Ms Rattigan’s background as set out in her submission as follows:

4. Both the Father and Mother are originally from Australia where they were both born and grew up, the Father is from Sydney, the Mother from country New South Wales.  They were married in Sydney in 2010.  They are both qualified lawyers, the Father is now employed in a senior position by an international accounting firm in Hong Kong.  The Mother stopped working as a lawyer prior to H’s birth, although since then she had set up a business in running classes for mothers.  She is a keen runner and trains and competes regularly. She completed a Masters of Law. In January 2016 she commenced a four year PhD course.

5. Shortly after their marriage the parties moved from Australia to Shanghai and H was born there. The parties then moved to Hong Kong in April 2013 and after a short period in Stanley, lived in Discovery Bay.  From the age of about 22 months H was enrolled in a Mandarin speaking playgroup and a French speaking kindergarten in Discovery Bay.

6. The parties separated in June 2014, the Mother and H moved to Mid Levels and it was agreed that the Father would also move to a location nearby which he did in July 2014.  It was further agreed by the parties that they would continue to share the same domestic helper,  (“B”), and that she would work at each residence in order to support H.  B lives at the Father’s apartment but goes to the Mother’s apartment on a daily basis when H is at the Mother’s.  B usually assists the Father in bringing H to the Father’s home on alternate Friday’s at the start of access.

7. The marriage between the parties was dissolved by the Decree Absolute granted on 26^th March 2015.  Prior to this, the parties had reached an agreement on finances which was made an Order by the Court on 6^th March 2015 [P1/1].

8. After the separation disagreements arose between the parties over access.  The parties reached an initial agreement over access in mediation with the assistance of RH.  This was not registered as a Court Order, but was reviewed after an agreed six month period in mediation.  Following this review it was agreed that the initial arrangement involved too much transitioning for H.  The parties then came to a new agreement with the assistance of RH and this was made an Order of Court on 6^th March 2015 [P1/17] (the “Consent Order”).

9. Under the terms of Consent Order the parties have Joint Custody of H and Joint Care and Control by sharing pursuant to the arrangements set out in paragraph 1(i) to (xvii) [P1/21-26] which includes the following access to the Father:

Week 1: Friday afternoon, he collects H from the Mother’s home at 5:30pm to Tuesday morning when he puts H on the school bus.

Week 2: Monday lunchtime when he collects H from the school bus at 1pm, to Tuesday morning when he puts H on the school bus.

Holidays: Every public holiday, except Christmas, Easter and Chinese New Year which are shared equally.  The long school holiday is also shared equally.

The law   

5.The law governing applications concerning the education of children in Hong Kong is the same as that for the arrangements for children generally. For the avoidance of doubt I will repeat the relevant section namely s. 3 Guardianship of Minors Ordinance, Cap 13, which states that:

GENERAL PRINCIPLES

(1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property-

(a) in any proceedings before any court (whether or not a court as defined in section 2) the court -

(i) shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to -

(A) the views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

(B) any material information including any report of the Director of Social Welfare available to the court at the hearing;

Discussion

6.I should say at the outset that I am being asked to choose between two very good schools in similar parts of Hong Kong. The crux of the matter is whether or not it is in H’s best interests to be taught in German when his parents are Australian and neither can speak German. This is especially so when it appears that historically at least the GSIS have expressed some concern about H keeping up in the German stream longer term.

7.The mother’s case is that H is doing well at the GSIS and that another upheaval would be detrimental to him. She points out that he has moved internationally several times in his young life and that he has also had to contend with his parents divorce and subsequent re partnering. (The mother is now cohabiting with a new partner and recently informed the father that she will be moving to Pokfulam imminently; the father is also in a new relationship albeit he is not yet cohabiting with his new partner. His new partner also has a child by a former relationship) Given that he is doing well and learning to master German she does not agree that he should be moved. In support of her case she argues that Glenealy has bigger class sizes than GSIS, that it has a stronger emphasize on academics which might be difficult for H and that he would have to start learning Putonghua when he has already lost most of his Chinese language skills. She also claims that Glenealy is less diverse than GSIS and that H may conversely lose his German skills.

8.With respect I tend to agree with much of what the father has said in response to these stated concerns. I accept that H is at risk of “falling through a very large crack” and that it is important for him to be educated in English, which is his native tongue. Given that he has spent much of the last two years mastering German I accept that it would be a shame for him to lose this skill and I accept the father’s proposal that H should continue to have extra German classes outside of school. I have no doubt that he would also continue to see some of his friends who speak German for play dates and such like and that this should assist in that regard also.

9.I also do not accept some of the mother’s other stated concerns. I agree that it is important for H to start school together with other children of his own age. Glenealy is a small primary school by ESF standards with only two forms a year. It has an excellent reputation. Although it has bigger class sizes than GSIS, it also benefits from a system where there is a teacher and a teaching assistant in each class. According to Dr B’s report H is a bright child who is under performing at present. I agree with the father that Glenealy’s emphasise on the basics – i.e. reading, writing and arithmetic should be regarded as a positive as opposed to a negative and that this may be very good for H. Further I do not accept that learning Putonghua should be seen as a negative and neither do I accept that Glenealy is likely to be less diverse than GSIS. Arguably I accept that the reverse may be true.

10.Although the GSIS have said that H should be kept back “in order to strengthen his German language skills and further develop his gross – and fine motor skills. This recommendation is not only based on his language skills and is a recommendation only” see letter dated the 23 February 2016, it seems reasonably clear that it would be hard for a child to be taught in German when he is not living in a German speaking environment and where German is not spoken at home.

11.Dr B’s very helpful report dated the 30 April 2016 reiterates that H is likely to adapt well to a new environment and that he is likely to perform adequately academically in a new school. There is nothing to suggest that H would not adjust perfectly well to Glenealy, given the opportunity. It is also clear that the English stream of GSIS is not a realistic option at present given the fact that H has failed the entrance exam twice. It is not clear if that will be a realistic option going forward. I tend to accept the father’s concern that the school may be reluctant to allow H to move into the English stream in any event as they may be concerned that parents should not see this as an alternative route into the more competitive English stream.   

12.Bearing all of the above in mind I will therefore give leave for H to start the Glenealy ESF Primary school with effect from August 2016.

13.Given that this is a child related matter there shall be no order as to costs in relation to the first part of the father’s application.  

Ms Mairead Rattigan instructed by Howse Willams Bowers for the Petitioner

Ms Thelma Kwan instructed by Withers for the Respondent