C, Lt v. O, G

FCMP 151 / 2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS

NUMBER 151 OF 2014

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RULING
(Choice of kindergarten)

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Introduction

1.This is an originating summons issued by an Applicant mother to determine the educational arrangements for a little boy – who I will refer to as D. Although the parties reached agreement on all the main issues relating to D they were unable to reach consensus on which Kindergarten he should attend and whether that should be an English speaking Kindergarten or a Cantonese speaking one. The mother is a Filipino domestic helper and the father is a Scot who works in the hospitality industry. The mother speaks no Cantonese and the father has some basic conversational Cantonese. It is the mother’s case that it would be in D’s best interests for him to be taught in an English speaking environment. The father disagrees and asks that he be taught in the local education system. This is mainly because the father says that he cannot afford to pay for the fees associated with attendance at an English speaking kindergarten. It is acknowledged that in an ideal world D should be educated in his mother tongue. This was also referred to in the literature attached to the mother’s affidavit. The Social Welfare Officer also acknowledged this fact in the witness box. For the avoidance of doubt I also accept that this would be preferable.    

2.The mother works for a Mainland Chinese employer who lives on the South side of Hong Kong Island. The mother’s employer has been very supportive of the mother, which in part has enabled D to continue to reside in Hong Kong. The father wishes D to attend one of three Government funded kindergartens on the south side of the Island namely A Kindergarten (Stanley), B Kindergarten or C Kindergarten. The medium of instruction in all three Kindergartens is Cantonese. The mother for her part has put forward a number of different options including D International Kindergarten, E Kindergarten and the F school in Stanley. These are all international kindergartens whose medium of instruction is English. When asked she was not able to proffer any other cheaper English speaking alternatives. The mother’s preference is E which she says is the cheapest option at HK$5,800 per month over 10 months. However according to the documents provided D might actually be marginally cheaper at HK$4,780 per month rising to HK$5,880 for P1. In either event the father says that these figures are beyond his ability to pay.

3.D is 2 ¾ years old having been born on the XX August 2013. He is not presently attending any formal playgroups. He lives with his mother at her employer’s home and he sees his father mainly at weekends. The father tends to work irregular hours. The father also has a young daughter by his marriage, which has also unfortunately recently broken down. His daughter attends a local kindergarten. Her mother is also a Filipino who is a non Cantonese speaker. The parties were never married.  

The law   

4.The law governing applications concerning a child’s education is the same as that for their longer term care and is governed by the same legislation namely s 3 Guardianship of Minors Ordinance, Cap 13, which states that:-

GENERAL PRINCIPLES

(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

The financial position of the parents

5.The Mother is currently earning HK$4,210 per month. She also receives HK$4,000 per month from the father for D’s maintenance. As indicated above she is presently living at her employer’s home with D. She has offered to pay for D’s transport costs and other related school expenses if she is successful in her application.

6.The father for his part earns HK$53,000 per month. However he says that he is financially stretched and that he cannot afford the school fees associated with an English speaking kindergarten. I should say at this point that I was less than impressed by the Father’s recent application for a loan which has increased his monthly outgoings significantly. I do not necessarily accept the reasons he gave in court for this.

7.Even without this loan however the father says that he has the following outgoings:

GENERAL
Rent (After deduction of HK$4,500.00 from a flat mate who is willing to take a spare room in the apartment)	9,500.00
Utilities Bills (Electricity, gas, telephone, water and internet service, X club monthly subscription, etc.)	2,600.00
Food at home and household expenses	3,000.00
Sub-total:	15,100.00
PERSONAL EXPENSES
Meal out of home	4,650.00
Transport	3,000.00
Clothing/ Shoes	1,000.00
Personal grooming	600.00
Entertainment/ Presents	1,000.00
Holiday	1,000.00
Medical/ Dental	1,300.00
Tax	6,500.00
Sub-total:	19,050.00
CHILDREN
C
Monthly Maintenance as per the 1st Order	5,000.00
School fee	60.00
Extra tuition fee	1,000.00
Transport to School	1,000.00
School books and stationery	800.00
Medical/ Dental	500.00
Clothing/ Shoes	500.00
Entertainment/ Presents	500.00
Uniforms	500.00
Sub-total:	9,860.00
The Child (D)
Monthly Maintenance as per the 2nd Order>	4,000.00
Sub-total:	4,000.00
OTHER MONTHLY LIABITIES
Monthly loan repayment to employer (Regarding contribution payment for legal aid assistance for both the divorce and the present proceedings)	10,000.00
Sub-total:	10,000.00
GRAND TOTAL:	58,010.00

8.The mother says that the father should be able to decrease his personal expenses in order to pay for D’s kindergarten costs. In particular she said in the witness box that he could decrease his rent and that the cost of eating outside the home at HK$4,650 per month was high. She said that the father could reduce these costs and that he was also provided with food by his employers. Likewise she claimed that some of his transport costs were reimbursed to him by his employers.

9.Although I would accept that the father may be able to reduce some of these expenses it is still hard to see how he might afford HK$5,800 per month on top for the kindergarten fees. I accept what he said with respect to his rental and that he needs to have suitable accommodation in which to see both of his children. I also accept that only transport costs associated with his work are reimbursed to him and that he is generally unable to eat food provide by his employer given his irregular work hours. All in all then although some of the costs may be capable of reduction it is unlikely that he would be able to find savings of HK$5,800 per month.

The mother’s case 

10.I have a great deal of sympathy with the mother’s predicament. As I have said it is accepted that in an ideal world D should attend an English speaking kindergarten. I also accept that if the mother were to return to the Philippines with D that the child would then be educated in an English speaking system. I do not however accept that no one can assist D with Cantonese. In the short term at least it seems that the mother’s employer can help in part – notwithstanding the fact that she is originally from the Mainland.

The father’s case 

11.I agree that it may be helpful for D to have some exposure to Cantonese – especially if the intention is, as seems to be the case, that he should remain in Hong Kong, at least for the foreseeable future. The father’s other child C, is being educated in the local system and seemingly without difficulty. Thus I agree that from the father’s perspective it makes sense for D to be similarly educated. I have already accepted that it would be very difficult for the father to afford the kindergarten fees on top of his other financial commitments.

The Social Welfare Report dated the 28 April 2016     

12.The Social Welfare Officer Ms W spoke to the mother’s employer and the father’s ex wife in addition to the vice principal of A Kindergarten (Stanley) and the parties themselves. In conclusion having weighed up all of the competing factors she said as follows:

19.   Currently, Ms C (The mother) contested with Mr O (the father) in the issue of the child’s education by which Ms C was keen to arrange the child to study in a private kindergarten where English was used as a teaching language while Mr O objected to the proposal and preferred placing the child to study in a local kindergarten under the government voucher scheme, which was within his financial strength and it’s medium of instruction was Cantonese while English and Putonghua were also taught.  Undoubtedly, a child learning in his mother tongue would have positive effects and benefits.  Notwithstanding, it was widely believed that the early childhood was a crucial stage for learning language.  The young children had high learning capability to learn different knowledge and languages.  Coupled with the affirmative comments from the vice principal of a local kindergarten, it was not a rare case to receive non-Chinese students in a local kindergarten under the government voucher scheme.  Most of the non-Chinese pupils adapted well without much learning difficulty or social relationship problem.  They also enjoyed a happy school life with other local students.

20.   No doubt, it would be reasonable for parents to arrange the best education to their children.  Yet, reality of different family situations would at times make parents to juggle between the best and the affordable.  Having considered the financial difficulty as expressed by Mr O be such as he had to pay maintenance to two families and repay the heavy loans, it was apparently that he could not afford the school fee of the private kindergarten as suggested by Ms C. Despite the share out of Ms C, Mr O might be required to afford $4,000-$5,000 per month to pay for the remaining amount of the school fees and the miscellaneous school related expenses.  If what Mr O declared was true, the amount might indeed out of proportion the financial capability of the family. In case the parents were incapable of paying school fees due to their financial difficulty, it would directly and negatively affect the continuity of the schooling of the child.  Viewing that Mr O had stably provided the maintenance to both children as well as he was willing to bear the miscellaneous school expenditure of his daughter, it was regarded that he was sincere to be responsible for the children’s educational needs as long as it was within his financial capacity.

21.   In view that Ms C had been working in Hong Kong for over 8 years and her employment contract would only be expired in November 2017, coupled with Mr O was a permanent resident in Hong Kong, the parents seemed to have the intention to stay in Hong Kong according to their track.  Hence, the child would live here as well.  Additionally, Ms C’s employer remarked that she probably still needed the assistance of a domestic helper and Ms C’s employment contract would likely be renewed after it’s expiry in late 2017.  In this connection, it was anticipated that the child would continue staying in Hong Kong in the near future. As Hong Kong was a place for integration of eastern and western culture, the child was beneficial to study both Chinese and English at school.  Since the local kindergarten also offered the opportunity for the child to learn both languages, it was not inappropriate to place the child to study in such school.

22.   Taking into consideration the parents’ views, the child’s educational needs, the parents’ respective social situations and the parent’s respective financial capacities, the Investigation Officer considered it may be a sensible choice for the child to attend a local kindergarten with circumstances that meeting the needs of the child and affordable to both parents.

13.I would tend to accept Ms W’s assessment of the situation and to agree with the recommendations made.

14.I should add that I am aware that there are some Government funded Primary schools that cater for English speaking students in Hong Kong. Longer term therefore it may be that the parents might consider one of these schools for D.

15.I will then make an order that D attend A Kindergarten (Stanley). As indicated above I have noted that the SWO has spoken to the Vice principal and that although Cantonese is the medium of instruction, the school is used to non Chinese students attending. I will then order that D attend with effect from the beginning of the new school year (probably from the 1 September 2016).  

16.Finally the father has said that he wishes to treat both of his children the same. I will therefore expect him to pay for any school fee, extra tuition fee, transport to and from the kindergarten, school books and stationery and medical and dental expenses for D on top of the maintenance figure of HK$4,000 per month that he pays to the mother at present. It seems to me that with a bit of economizing he should at least be able to meet those extra expenses. I will give liberty to apply in that respect.

17.As this is a child related matter I will make an order that there be no order as to costs. There shall be legal aid taxation of both parties own costs.

Mr Clement of Massie & Clement appeared for the Applicant

Ms A Fong of Keith Lam Lau & Chan appeared for the Respondent