Cyyc v. Tvkt
Read the full judgment text of FCMC 14649/2014 on BabelCite. This Family Court judgment was delivered on 16 June 2016 before Deputy District Judge Susan Wong.
Matrimonial Causes – Child Arrangements – Boarding School – Best Interest of the Child – Parental Discord – Expert Evidence – Whether it is in the best interest of the child to attend boarding school in UK at age 13 – No; application dismissed – Mother's application dismissed; no order as to costs
Legal issues: Whether child should attend boarding school in UK
Outcome: Mother's application dismissed.
Cites 2 cases
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FCMC 14649 / 2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 14649 OF 2014 ----------------------------
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---------------------------------- J U D G M E N T ---------------------------------- 1.This is a trial to determine whether the only child of the family, M should study at a boarding school in the United Kingdom (UK) in September 2017 when he would be at the age of 13. 2.The Petitioner Mother asked for:
Brief family history 3.The Mother was born in Hong Kong and she has an elder sister and brother who are respectively 13 and 11 years older than her. The Mother received primary education in Ghana and secondary boarding school in UK at the age of 11. She then graduated from a law school in England and had been a solicitor until she retired from her practice on 30 November 2014. 4.The Father was born in Vietnam and he received education in Hong Kong before he went to university in the United States (USA). He is currently not employed. 5.The parties were married in Hong Kong in August 2001. M was born on (Date and Month Deleted) 2004. It is not in dispute that shortly after he was born, the Father gave up his employment and had become a house-husband or in the Mother’s words, a ‘guytai’. M is now 12 years of age and he has been studying at the (Name of School Deleted) and is now in Year 7. 6.Divorce petition was issued by the Mother on 4 November 2014 and decree nisi was pronounced on 21 September 2015. Despite that however, the parties had still been living together until 1 February 2016. 7.At some stage in the course of the proceedings, the parties managed to agree joint custody and at the CDR hearing, they also agreed a share caring schedule whereby the Mother would be responsible for M every Mondays and Thursdays and the Father would have Tuesdays and Wednesdays and they both have alternative Friday, Saturday and Sunday. In effect, each of the parents has 7 days in a schedule of 2 weeks. As for the question of care and control, both parties have decided to adjourn the issue until this application is concluded because if M is allowed to attend boarding school in the UK, both Ms Yip representing the Mother and Mr Pilbrow representing the Father submitted that the argument would be academic in that it would only be a question as to how to divide the exeats and school holidays between the parties. Why is it the need to make the present application? 8.The Mother said that it has always been the consensus between the parties that M would be leaving (Name of School Deleted) at the age of 13. It is the Father’s constant change of stance making this application inevitable. 9.The Father on the other hand said that although there is no question that M should go abroad for tertiary education, there has not yet been any consensus for M’s secondary schooling. 10.With respect, I do not agree. It is obvious that from his Form E filed on 22 December 2014, under the column 5.4, the Father mentioned that M will stay at (Name of School Deleted) until he attends boarding school in the UK which may be when he turns 13 or 14 years old. In the Form J dated 16 February 2015, the Father also said:
11.However, in another letter by the Father’s solicitors to the Mother’s solicitors dated 4 May 2015, “In relation to the future education of M, our client has an open mind.” In the 7th paragraph, “……we are instructed to request your client to consider M’s future education in a broad manner, as studying in a boarding school in UK is not the only option for M. We would welcome your client to explore more options, such as countries, local or overseas, boarding school or day school and types of schools and curriculum. We also advise your client to find out the wish of M as to what he would like to have for his education and career, so that options can be explained and made available to him.”[2] 12.Ms Yip submitted that in a letter from the Mother’s solicitors to the Father’s solicitors dated 11 May 2015, the penultimate paragraph stated that, “Our client is willing to explore other options in particular US boarding schools. Is your client also like minded?”[3] The Father however made no concrete response to this letter. 13.Ms Yip also submitted that in the Father’s Concise Statement of Issues for CDR dated 3 November 2015[4]:
14.It was against this background that the parties have jointly appointed Dr Craigen who is a clinical psychologist specialising in psychometric testing to give expert opinion. 15.In the report dated 3 March 2016, Dr Craigen concluded that:
16.As the Father still objects to M going to boarding school after this report was made, judging from the above history, I have no hesitation to find that the Father has changed his stance. 17.Furthermore, I also find that the Father’s lack of response to the Mother’s solicitors’ letter dated 11 May 2015 undesirable. 18.Having said that however, I note what the Father said in paragraph 9.5 of his 2nd Affirmation dated 11 May 2015:
19.The Father also repeated in his oral testimony that when M started learning computer programme around 2 years ago, M soon indicated that he wanted to be a videogame programmer. The Father therefore thought that if M had to go to boarding school, he should go somewhere which offered advanced computer technology. From his own research, the Father considered USA a viable option because 7 out of the top 10 universities around the world on computer technology are in USA. The Father also alleged that he had done some research himself including those boarding schools within 2 hours’ drive from where there are international airports such as Seattle, San Francisco, Los Angeles in the West coast and Boston, New York and Chicago in the East coast but had come up with the conclusion that M should not be going anywhere. When asked by Ms Yip, the Father admitted however that his research had not been featured in the correspondence nor in his affidavits filed and that he had also forgotten the names of the schools that he had researched. 20.The Father further said that it was because of M’s development that he has therefore asked the Mother not to be narrow-minded on the options available and had even suggested Germany as one of the alternatives. 21.Although I find that the Father’s stance has changed and may have caused confusion, this trial is about children’s related matter. Children’s matter changes because they are growing up every day. In view of M’s indicating a preference to be a videogame programmer as his purported career which I do not think either the Mother or the Father has any dispute, I accept the Father’s explanation as to his change of stance. 22.As to the Father’s alleged research, I am not putting any weight on it because even in Court, he could not give any further details. In any event, this trial is only about whether M should study at a boarding school in UK, I therefore would not consider research (if any) on USA boarding schools. 23.When questioned by Ms Yip as to why the Father mentioned Germany out of nowhere, he explained that at the 2nd mediation meeting with the Mother, he was caught off guard when the mediator unexpectedly asked the parties which country M should attend boarding school. At that time, it was only on his mind that there could be two types of boarding schools that he would consider: i) those English speaking countries which he mentioned Canada, USA and Australia; and ii) those countries with advanced computer technology where he said Germany, Israel and Japan. 24.As even the Mother admitted in her oral testimony that the mediator at the 2nd meeting had suddenly changed the topic, I accept the Father’s explanation. The approach I should take in this case 25.Ms Yip in her opening submitted that:
26.Obviously, Ms Yip is referring to the Mother. 27.In paragraph 6 of the Mother’s 15th Affidavit, she said:
28.With respect, in PD v KWW [2010] 4 HKLRD 191, Hartmann JA said in paragraph 36, “It is to be emphasised in the strongest terms that if one parent only is given custody, that parent is not thereby given an absolute and independent authority to act without further reference to the non-custodial parent. Any such potential misunderstanding was quashed in Dipper v Dipper [1980] 3 WLR 626in which Ormrod LJ said:
29.In the same case, Cumming-Bruce LJ, another experienced family judge, said:
30.It is therefore clear that in case of dispute on children’s matter, it is for this Court to determine what course to take whether the parties have joint or sole custody. The Law 31.I do not think the law is in dispute: my determination is based on whether it is in the best interest for M to leave Hong Kong to study at a boarding school in UK at the age of 13. The Mother’s case 32.Apart from the consensus reached between the parties that M would go at the age of 13, the Mother also relied on the evidence and the report prepared by Dr Craigen. In short, Dr Craigen concluded that M’s emotional intelligence is in the high range and that he is also extremely intelligent who is cognitively capable of attaining outstanding academic outcomes and yet his current academic results fail to reflect this. In her oral testimony, Dr Craigen also concluded that M has excellent level of optimism and he is adaptable, sociable, like to do the right thing, but lacks assertiveness. As the parents cannot agree on their expectation on M, co-parenting may not work just by M shifting between the parents’ two homes. She said that the issue might become even more complicated. Sending M to boarding school would therefore serve as a buffer and there is no evidence to suggest that M cannot develop better at a boarding school. 33.The Mother said in her oral testimony that she is particularly concerned about the risk of M to remain in (Name of School Deleted) because of his academic performance and the acrimonious environment at home. Although the Mother is trying hard to co-parent and is also trying hard to alleviate the acrimony, she does not believe having 2 homes would relieve the pressure; she said that it is still a stressful environment. When put by Mr Pilbrow that M has already got used to that environment, the Mother admitted that the relationship with the Father had not been well over the past 10 years but it was not acrimonious because there had been no conflict of interest until her discovery of the Father’s financial misconduct. The Mother also said that M is now growing up and is fully conscious of the acrimony and he puts on a brave front. M is obviously stressed about his parents’ cold war. In her opinion therefore, M needs to be removed from the pressure resulting from the divorce and to rebuild his character to be assertive and independent. The Mother disagreed that M is not yet ready for boarding school because even if he has commenced puberty, there has not been any sign of his emotional change. 34.In paragraph 35 of her 15th Affidavit[5], the Mother also said that:
35.Ms Yip also submitted that there were two teachers being interviewed by Dr Craigen, who also said that M is not benefiting from the home environment. The first teacher – Ms (F) 36.She is the primary school counsellor at (Name of School Deleted) and has known M since 2009. Ms (F) describes him as a clever, honest and resilient young man who manages himself well. She reports that M is rather guarded, slow to warm to people and tends to hold in his feelings but has a good and longstanding friendship group. M came to Ms (F)’s attention when he was in Year Six following an incident in which he had lain under a basketball hoop and asked peers to throw balls to land on his face (“the basketball incident”). He then attended individual sessions with her although in them he sometimes said nothing. Ms (F) reports that M judges himself harshly, gives himself much criticism, and generally holds in his frustrations although these can become evident in his friendships. She adds that overall M functioned reasonably well in Year Six. When directly questioned about his suitability to attend boarding school, Ms (F) responded that in her opinion Germany, which had been mentioned to her as a potential location for the schooling, would not be ideal because M could feel further isolated with no family support there. 37.Ms (F) mentioned that standard in-school-screening tools had revealed M’s character strengths as kindness, curiosity, creativity, humility and forgiveness. She believes that while kindness is definitely a strength, she also sees some negative manifestations of this characteristic in M’s behavior as he dislikes hurting anyone’s feelings and appears to avoid putting himself in situations where this could be a possibility. Ms (F) also has some mild concerns about the potential emotional impact on M of the Father and the Mother’s acrimonious split. She feels that although M may not admit it openly, it is possible that he is experiencing much angst as a result of feeling caught in the middle of his parents. The second teacher 38.Dr Craigen said, “As part of this assessment, an interview was conducted on January 12th, 2016 with Ms (J), M’s Student Advisory and current Homeroom Teacher at (Name of School Deleted). She has taught M for many years. She describes him as a lovely young man who is well behaved, empathetic and sensitive with a warm demeanor. She reports that M is also a very fragile individual and extremely distressed by the parental discord; on the outside M appears to be doing very well but she believes he is under internal pressure. She believes that M feels unable to talk to his parents about his problems and about how he is doing at school but reports that he discloses this information to her in written form. She adds that he is very concerned about social situations and fitting in with peers, and does not want others to feel he is “annoying, weird or gross”. Furthermore, Ms (J) reports that M is uncomfortable in large groups and finds it challenging to work in groups because of his discomfort about fitting in with peers. She notes that he has a good friend with whom he always attends Advisory sessions but is slightly nervous during these. For example, M never takes off his shoulder bag, finding some psychological safety in keeping it on. She also reports that M dislikes leadership roles and responsibility because of his fear of being wrong. Academically, she reports that M is doing reasonably well but is definitely feeling stressed. M has also disclosed to her that he is not performing academically as well as he would like to because he is unable to focus on his homework due to the current environment at home. When directly questioned about M’s suitability to attend boarding school overseas, Ms (J) replied that a new environment would enable M to develop a new identity and leave behind his fears and insecurities but he may benefit from remaining with the security he derives from his current peer group. She adds that because M does not cope well with large groups and transitions, a potential boarding school should be a small and intimate one in which M could benefit from close relationships with teachers and peers. The Father’s opposition 39.Although at some stage in his oral evidence, the Father said that he would not resist if M wanted to go to a place full of bullies, he had drawn my attention to a renowned book The Making of Them: The British Attitude to Children and the Boarding School System written by Nick Duffell, a boarding school survivor, a UKCP registered psychotherapist and a supervisor, a BACP Senior Clinical Practitioner. In his 11th Affirmation, the Father has extracted paragraphs after paragraphs about the dark side of the boarding school in the UK. He has even through his lawyers sent me the whole book. 40.For my part, I do not wish to go into details of the book but as Ms Yip in her opening submitted that:
41.I entirely agree and I therefore would not give any weight to the content of the book. 42.The Father also argued at paragraph 8.4 of his 11th Affirmation when he said:
43.As this is only the Father’s speculation without expert or any other evidence to support, I do not accept those comments. 44.In the Father’s evidence, he also mentioned a talk by Mr Drennan which the Father described that although he has not been greatly influenced but the talk has served the purpose of alerting him because he had since thought twice whether boarding school suits M. He said that the talk not only talked about the dark side of the boarding school but also the reasons for sending children to boarding school for example:- a) family unable to take care of the children, b) ill-treatment of the children or c) urgent needs. He then talked about the society being not suitable for the formation of boarding school. The Father said in the past, there was a need for the mass production for personnel to be raised to send children to training etc. Again, I am not putting any weight on this talk nor comments as those are made without any expert and other support. 45.Although I found some of the Father’s evidence inconsistent, ill-reasoned and I tend to agree with Ms Yip when she submitted that he sometimes never answered questions directly, this trial is about children’s related matter. As even the Mother admitted that the Father and M are in close relationship, I would therefore only consider whether it is in the best interest of M to go to boarding school at the age of 13. 46.The Father said in his 10th Affirmation that:
47.The Father said that boarding school is not suitable in the light of M’s personality and his ability. As M is introvert, immature and adapts slowly to his surroundings and people and that he is also timid and is afraid of troubles, all these features would mean that he is prone to bullying. The Father said he is not suitable to go to UK at the age of 13 because of the effect brought by boarding school emotionally and mentally. In the letter by the Father’s solicitors to the Mother’s solicitors dated 21 May 2015, “He would not be able to help himself in the event of being bullied by other participants….”. The Father also said that there are also drugs and other problems and sending M to boarding school would be difficult for him every day. As M is already 12 now, what is his view? 48.In Dr Craigen’s report, she said, “During conversation, M informed the examiner that he is “a little anxious about the future”. He also disclosed that he feels both his parents give him too many choices to make, even when something is unrelated to him, and he would be happier if they gave him fewer. He added that if he were unaware that there was a choice about whether or not to go to boarding school at thirteen he would simply do as he was told. He further stated that his ideal school would be a small one in which he knows everyone, although he feels (Name of School Deleted) is sufficiently personable. He would also like his ideal school to be one that offered exciting classes. M informed the examiner that the current relationships he has with family members are very good, with no need for change, and that each of his parents has a different parenting style but they are equally good at being a parent.” 49.In the Father’s 11th Affirmation, he had invited me to look at the e-mail from Dr Oswalt to the Mother on 8 April 2016. Dr Oswalt is the Director of Child and Family Therapy, Hong Kong Psychological Society Registered Psychologist who is recommended by Dr Lora Lee the co-parenting counselor of the parties as a Counselor for M. In the email, Dr Oswalt said:
50.The Mother admitted in her oral testimony that M did mention having gone through the pros and cons with Dr Oswalt but he did not mention that he prefer to stay in Hong Kong and the Mother did not push for an answer because she does not want to give him any choice to upset him. When asked whether M has in fact formed a view but did not express himself, the Mother said it is difficult to say. 51.In my view, since Dr Oswalt did not give evidence in this Court, and given M’s character that he does not want to say things to hurt either of his parents and M has repeatedly said that he would prefer not to be given choices but rather be directed by his parents, I would not consider Dr Oswalt’s email as if M has expressed his view. Discussion 52.By looking closely at Dr Craigen’s report, I would first of all deal with the two teachers’ comments. Although Ms Yip submitted that Ms (F) was only talking about Germany when she was questioned about the suitability of M attending boarding school and therefore UK was not on the teacher’s mind, as Ms (F) did not give evidence in Court and neither Dr Craigen could elaborate further when questioned by Mr Pilbrow why Ms (F) had mentioned Germany, I tend to agree that Ms (F) had in mind not only the language barrier but the lack of family support because Dr Craigen said that those were the words used by Ms (F). 53.In M’s situation, it is clear that M has no family support in UK. In paragraph 32 of the Mother’s 14th Affidavit:
54.Looking at this paragraph, at most, M would have the support of those longstanding, loyal and willing friends of the Mother but not family support. 55.As for Ms (J), I am of the view that her comment is neither here nor there. The Mother in paragraph 21 of the Mother’s 14th Affidavit said that:
56.With the greatest respect, apart from making the above comment, Ms (J) also added:
57.For the reasons given, I therefore do not agree with Ms Yip that the two teachers have voiced their total support for M leaving to boarding school. 58.Both teachers have however expressed their opinion on M’s character. Ms (F) reported that M is rather guarded, slow to warm to people and tends to hold in his feelings. She also said that while M’s kindness is definitely a strength, there are some negative manifestations because M dislikes hurting anyone’s feelings and appears to avoid putting himself in situations where this could be a possibility. Ms (J) also reported that M is uncomfortable in large groups and finds it challenging to work in groups because of his discomfort about fitting in with peers. With this type of character in mind, would M fit in boarding school? 59.Although Dr Criagen was of the opinion that M could adapt to the change, the Father on the other hand said that whilst Dr Craigen is the psychologist, Dr (M), whose comment was also quoted in Dr Craigen’s report, is the most experienced in terms of expertise. What did she say to Dr Craigen? 60.As part of this assessment, Dr Craigen said that an interview was conducted on January 28th, 2016 with Dr (M), Secondary School Counselor at (Name of School Deleted).
61.The Mother objects to the idea of (City H) as it is only a new concept at (Name of School deleted) and there has been a mixed feedback and further there was too much free time and so students enter into relationships. In any event, she is also concerned with the pollution problem because M has been suffering from eczema and asthma/breathing difficulties since he was a child. 62.For the purpose of this trial, I think it is rather premature for me to consider whether M should attend (City H) in Year 10. However, I note the comment made by Dr (M) that it is very important for M to maintain his friendships with peers at thirteen. In this respect, Ms (F) said that M has a good and longstanding friendship group here. The Mother in her oral testimony also agreed that M likes his buddies. M also said to Dr Craigen that his ideal school would be a small one in which he knows everyone and he feels (Name of School deleted) is sufficiently personable. As reported by Dr Craigen, M enjoys school and likes his teachers. With these in mind, is it in M’s interests for him to leave? 63.In Dr Craigen’s report, it was asked how comfortable M is when meeting new friends, does M have the ability to form close friendship bonds and whether he is likely to seek help from others? It was found that M himself reports his level of comfort when in the presence of others as being a little lower than that of his peers. Furthermore, his parents are concerned that M finds it difficult to be assertive in group situations, is prone to being passive in terms of initiating peer interactions and is rather lacking in leadership traits. M also perceives these behavioural traits as areas of weakness for him. 64.The Mother when questioned by Mr Pilbrow said that she did not notice M feeling uncomfortable in large groups. When further questioned by Mr Pilbrow that by studying in boarding school, the students are bound to live together in large group. The Mother in reply said that M had been to Taipei at the age of 8 and he also went to camp like outdoor tent with portable toilet. Recently, M has also gone to Xian for 11 days and 10 nights. Although there were complaints, she said M managed. 65.Although I have no questions that M was doing fine in those trips, they were only short trips organized by the school or the parents which I would say most of the children studying in international school in Hong Kong would have experienced. It is very rare that the children could not manage. Here however, we are talking about a big change from day school at (Name of School deleted) to a boarding school in UK which the Mother also agrees in her oral testimony that certain children fit in with the culture but not all. 66.I disagree with Ms Yip when she submitted in paragraph 3(n)(iv) of her closing submission that “M survived six or 10 days at camp, does not mean he will not survive life at a boarding school. Six to 10 days is a big deal to a child of M’s age.” It is contrary to what the Mother said in paragraph 22 of her 15th Affidavit:
67.The Mother admits that there would be anxiety of M moving from the known to the unknown. She however added that planning for the future is always a risk because there is no crystal ball. The question to ask is why is there the need to change? Underperforming in (Name of School deleted) 68.One of the concerns of the Mother is that (Name of School deleted) is not digging out M’s potential. 69.In M’s Progress Report from 25 August 2015 to 19 January 2016, M has achieved Grade 6 out of 7 in Product Design and Music, Grade 5 out of 7 in Drama, 5 and 6 out of 8 in English and 6 and 7 out of 8 in Maths and in Individuals and Societies. His assessment achievements are all 6 out of 8. M is in Chinese Mainstream Band 1 and has achieved 4-7 out of 8. Dr Craigen however reported that there were no concerns raised in M’s school reports about his academic performance or behaviour. 70.In the Progress Report, the Advisor Comment is that:
71.As to the Head of Year Comment:
72.As noted, M is enjoying the diversity of topics and idea that his current secondary school is offering. The Father said in his oral evidence that (Name of School deleted) offers excellent and splendid education. The Mother in her oral testimony also said that, “There were times when the Father did not think much of (Name of School deleted) because of their lack of pastoral care although it is good academically.” In that case, if both parents agreed that (Name of School deleted) is good academically, why do the Mother and Dr Craigen think that a change to boarding school would enable M to develop his potential? 73.In paragraph 25 of the Mother’s 15th Affidavit[7], she said:
74.Looking closely at the Progress Report, save for the Chinese subject, I cannot understand why the Mother said that M is underperforming. Is that solely because when the Mother took M to the Dolphin Education and Academic Asia to discuss his education prospect in UK that they had never recommended Harrow or Eaton or in the Mother’s words: they said M is not the Harrow or Eaton type? Given Dr Craigen’s finding that M is highly intelligent, is the Mother therefore of the opinion that M is underperforming? 75.The Father however said in his oral testimony that although he is happy to learn from Dr Craigen that his son is highly intelligent, M is not gifted. The Father further said that if M is so highly intelligent, why didn’t the Mother who claimed that she had known M better also failed to notice that quality over the past 12 years? The Father said that he had talked to Ms (F) recently over the phone and she made the comment that boys’ performance fluctuates and they do better in subjects that they like and are not good at subjects they do not like. She said that it is normal for boys to do better when they are in secondary schools and she said things could change. 76.For my part, I accept this entirely because it is common knowledge that boys generally develop at a later stage than girls when they are young. Given that M is only in his first year of secondary school and this is the Progress Report for the first 6 months of his performance, my view is that M has been coping very well. 77.As for the Chinese subject, even the Mother agreed that by attending boarding school, M’s Chinese language skills may become less strong[8]. The Mother also said, “In any event, even though Chinese is important, it has never been an emphasis in M’s day-to-day life. Both the Respondent and I speak predominantly in English to M, interspersed with some limited Cantonese.[9]” It therefore appears that there is no difference whether M stays or leaves. 78.With regard to the Mother’s complaint about the Year 6 home room teacher failing to draw her attention about the basketball incident, I notice that the matter has already been dealt with by Ms (F) and the Mother has also taken step to see to the matter by seeking advice from a child psychologist, it is therefore no longer in issue. In case there are other unexpected incidents happening, I am sure the Mother would deal with those. After all, M is already attending the therapy sessions of Dr Oswalt. 79.In relation to other benefits to M of attending boarding school, the Mother said in paragraph 37 of her 15th Affidavit that:
80.With respect, the whole statement appears to me that boarding school might not suit M’s character. If indeed the current activities are chosen by M and that he is enjoying them, what is wrong with that? If the Mother however wishes M to do others of her preference, given the Mother is now retired, I am sure she could take M to those activities instead of relying on the Father to drive M. Hong Kong is a place where you can survive even without a car. 81.In my view, since M started secondary school and the Mother in her oral testimony also agreed that he is more diligent, given the time, I think M would score better. There is however no guarantee that a UK boarding school would dig out M’s potential within the Mother’s expectation. 82.Dr Craigen in her oral evidence said that because M wants to be a videogame programmer and because he is struggling academically, it would be beneficial for him to change. She however agreed that M need not leave Hong Kong solely for the change. 83.With respect, I disagree with Dr Craigen when she said that M is struggling academically. The only time that was mentioned in her report was when M’s homeroom teacher Ms (J) mentioned that:
84.Even the Mother confirmed in her evidence that Dr Craigen (in a follow up call with her on 17 March 2016) is indicating that perhaps it is the absence of factors such as a positive home learning environment and parents being involved in his schooling, that is holding back M’s incredible potential[11]. 85.With respect, M felt the stress not because he is struggling academically as evidenced by the comments in his Progress Report. It is the home environment. 86.As there is no evidence to suggest that M would definitely perform much better in a UK boarding school, I do not find this reason substantiated. 87.Before I finish with this topic, I wish to add that I have no comment as to the to-be appointed headmaster in (Name of School deleted) and the debacle surrounding the new headmaster at the (Name of Another School deleted) when the Mother drew my attention in paragraph 20 of her 15th Affidavit[12]. All I can say is that not a lot of schools encountered the debacle but even if I am wrong, I cannot make my determination just on a possible fear of debacles. To remove M from the acrimonious environment 88.In paragraph 19.2 of the Mother’s 14th Affidavit[13], she said:
89.The Mother further observes that M seems to be somewhat anxious, sad and overly sensitive and has had occasional meltdowns. For example, when dining with another family at a restaurant M’s friend inadvertently deleted information from M’s iPad and M became very distressed and complained of an inability to breathe. The Mother also describes incidents in which he overreacted to the presence of a wasp last summer, was overly dramatic when he ate some spicy food and in 2014 was so distressed about forgetting to take a notebook to school that he lay beneath a basketball hoop there and wanted peers to drop the ball on his face. 90.The Father also gave an example that one day in or around 2014 when the parties had already started the divorce proceedings but were still living under the same roof, the Father was helping M for shower. All of a sudden, the Mother rushed into the bathroom and with something of a topic that the Father could not remember, the Mother yelled at the Father in a violent manner. After the Mother left, the Father felt really sad and sat on the floor by the bathtub and he felt M was sad too but was sympathetic that M patted his father’s back and said, “Dad, it is OK.” The Father said that he felt so emotional and M must have felt what was going on between the parties. 91.For my part, I have no difficulty in finding that M has been caught in the loyalty conflict. As Dr Craigen said in her report:
92.In this respect, I have to criticise both parents’ way of handling the matter. 93.The Mother said in her Form J dated 16 February 2015[14]:
94.In the Father’s Form J dated 16 February 2015[15], he also said that:
95.Whilst both parents seemed to have acknowledged their worries as to the acrimonious atmosphere which would have an impact on M, they have nevertheless chosen to carry on that way. The Father had even reported the Mother to the Police of suspected theft in May 2015 because he had reasons to believe that some of the documents used in these proceedings had been hacked from his personal computer and 2 mobile phones. 96.I have no doubt that M loves both parents. In one of Dr Craigen’s Perception-of-Relationship-Test, it was found under the heading:-
97.In Dr Craigen’s report, she mentioned the degree to which each parent offers emotional security to M and the likelihood of significant and/or debilitating emotional distress in the absence of each parent.
98.Given the situation, is the parents’ behaviour hurting M so that he was suffering from stress? The answer must be yes. 99.I believe there had been a lot of tensions after the Mother’s retirement but before the Father moved out. In particular, it is said in the Father’s Form J that:
100.In the Mother’s Form J[16], she said:
101.No doubt this sort of living arrangement would have caused a stressful environment. 102.However, as said by the Father which was not challenged, he had moved out from the matrimonial home to a serviced apartment on 1 February 2016 and his new flat would be ready for him to move in when the renovation would have been completed at the end May 2016. As reported in Dr Craigen’s report, M will then reside for equal time with each parent. In that case, does M need to be removed from the acrimonious environment at the age of 13? I do not think so. There would be no adverse influence because the parents would be living in two different flats. The stress in that case should therefore be able to be removed from M. As said by the Father in his oral testimony, when the Father moved out, he initially had worries about M but he was surprised to note that M even got involved with the design of the Father’s new home. The Father further said that when M visited the Father at his serviced apartment, he was happy as if M was on ‘holiday’. I believe in that. 103.Furthermore, I notice from Dr Craigen’s report that her evaluation were conducted on 16, 23 and 30 January 2016 which were before the Father moved out. Her observation was therefore before the change of the living environment of the family. I agree with Dr (M) that M need not be immediately removed from the family and I also believe that once the parents are in separate dwellings, the current parental pull on M will lessen. To build up assertiveness and to learn to be independent 104.In paragraph 40 of the Mother’s 14th Affidavit[17], she said:
105.The Mother also said to Dr Craigen that she has no concerns about M’s ability to cope with and thrive at boarding school when he reaches the age of thirteen. She also believes that M would develop increased resilience and independence by doing so. Moreover, she strongly believes that he would benefit greatly from being removed from an environment in which there is much parental discord and a complete breakdown of communication between his mother and father. 106.As I have already dealt with M’s loyalty conflict and tossing between two homes in the earlier part of my judgment, I need not repeat myself. 107.I have reservations however with regard to the Mother’s comment that M does not need much physical care. Mr Pilbrow used the word mollycoddle to describe M because he is driven to school daily by his Father, has his fresh lunch delivered to school and the Mother also said that she is predominantly the one to take M to medical and dental appointments including orthodontist. In Ms Yip’s opening submission, she also tried to persuade me how extremely caring the Mother is when she submitted in paragraph 37 that:
108.The Mother reported to Dr Craigen that M sleeps less than is typical for his age and has problems both falling asleep and waking up in the morning. The Father on the other hand said in paragraph 9.1 of his 2nd Affirmation[18]:
109.For the purpose of this determination, I do not have to rule whether the Father’s version is correct. The point is both parties have no dispute that M needs company when he sleeps. 110.Given this background information, I disagree with the Mother that M no longer needs much physical care. Although the Mother said that by being mollycoddled, it does not mean that M would not be able to survive in the boarding school. I agree. But should M open up to the challenges to learn independence at a boarding school in UK at the age of 13? 111.Ms Yip in her closing submission said that M needs to explore more sports, more games, more opportunities, see more things, enjoy the company of more friends of diversified backgrounds and races, nurture in the training of different cultures, perhaps even make more mistakes in a new environment, experience the challenge of having to make his own bed, cook his own meals, clean his own rooms. 112.The Father said in paragraph 8.2 of his 11th Affirmation[19]:
113.The Mother on the other hand said in paragraph 39 of her 14th Affidavit[20]:
114.The Father disagreed with such an arrangement and said that it is a gamble. When questioned by Ms Yip, he disagreed that the risk to send M to boarding school can be minimized by careful selection of the school. If it fails, the Father asked what they can do: should M come back and look for another school? The Father asked why there could not be a steady development because at (Name of School deleted), the parents can provide the support every day if M needs. Although the Father agreed that the advantage of a boarding school is that the facility is more and the system promotes children independence and better organisation, the Father said that he had read from an article that according to research, dependence is a natural process in the childhood. Child can learn from the grown-up, inter-personal relationship and trust through bodily contact with parents and people he trusts in intimate relationship. He said that both Dr Lora Li and Dr Craigen had agreed that there is no need to learn independence. 115.Ms Yip in her closing submission said that M possesses all the qualities of being able to mix well with people: both peers and adults; M is adaptable to new environments, M is socially adept and can deploy behavioural strategies to socialize with people. He is only lacking in independence and assertiveness, with a relatively low self-concept. He can therefore benefit in a boarding school which promotes exactly these aspects. 116.I must admit I have found this part of my decision very difficult to make. Both parents have presented some forceful arguments. I have thought of the matter over and over again. I took notice however that both parents agreed that M is timid, introvert and lacks independence. Dr Craigen said in her oral testimony that M is lacking in assertiveness but has been very well cared for. Her data however did not suggest that M is sad and disorganised because she said that people forgot what they can do at the age of 11. She said that M may not have changed greatly in terms of his capability and intelligence. She also agreed that boarding school fits some but not others and her data suggested that M is in between them. 117.In her report, Dr Craigen said that:
118.When questioned by Mr Pilbrow, the Mother said that:
I agree but that means that there are uncertainties. 119.Although Mr Pilbrow has tried to put forward the fact that M had been bullied when he was six at the swimming pool changing room, I accept that it has not been happening for a long time and things changed to the brighter side. As reported by Dr Craigen:
120.However, the fact that M has not been bullied since he was six, was it because he has the parents’ support throughout all those years? In paragraph 19 of the Mother’s 15th Affidavit[21], she said:
121.The letter that the Mother mentioned is dated 24 December 2014[22], it was said on paragraph 1 of page 2 of the said letter:
122.One of the oppositions raised by the Father is that there are full of bullies in boarding school; he however also acknowledged in his oral testimony that bullying can happen at every school around the world. Nevertheless, given M’s character of being too kind like what the Mother described him as “always allows others in front of him in a queue and will put their needs before his own”, I am not sure whether boarding school suits M at the age of 13. But if M stays in Hong Kong, it is unlikely that he would get bullied again because he has nearly finished his 1st year of secondary school and he has made many friends. In any event, the parents are with him every day. In case there is any issue of bullying, I am sure they would deal with it. 123.I accept that M loves his school and teachers. By allowing the Mother’s application, M would lose the classes that he enjoys and the classmates that he loves. Ms Yip in her opening submission said that many of M’s best friends since around year 2 had left (Name of School deleted) in succession. She argued therefore M has to make new friends every single year. She submitted this is life at an international school. 124.If M were to go to boarding school in the UK however, this would be a completely new environment. I agree with Mr Pilbrow that friendship does not build up overnight. 125.With regard to the learning of independence, as mentioned in the closing submission of Ms Yip when she talked about the camp and the school trips in paragraph 3(n)(iv):
126.So, if (Name of School deleted) is already organising those trips with an aim to train independence and assertiveness, why does he have to leave at 13 but not when he is older? 127.When asked by Mr Pilbrow as to the fact that primary school learning should be fun and secondary should be tighter, why not give (Name of School deleted) a try as M is just in the first year of secondary school, the Mother said it is running out of time because 13 is the optimal age. She said that as GCSE is taken at 16 so that 13 is the pointer for new intake in order to allow time to settle in. 128.In the Mother’s 14th Affidavit, she said[23]:
129.Ms Yip in her closing submission has invited me to read articles on boarding school in UK[24]. In an article, “Why working out harder doesn’t give you a licence to pig out afterwards” dated 29 January 2016”, it however said this:
130.From this article submitted by the Mother, it seems to suggest that M does not have to go at the age of 13. 131.The Mother in paragraph 10 of her 15th Affidavit[26] said:
The question is how soon? 132.Again from those articles that I was invited to read, there is an article written by Ben Fogle: Without boarding school I’d be nobody[27], he said:
133.In the same article, the author said that his wife also cried for a year when she started boarding but is now grateful for the experience. 134.Although Dr Craigen said that it is highly likely that M will adjust rather quickly to a new environment, Ms (J) who has taught M for many years was of the view that M does not cope well in transition. As their opinions; one being an expert and the other one has known M for a long time are contradictory, given that it is the Mother’s case that M’s potential has not yet been dug out, is it still one year the time we are talking about? 135.I can understand that the Mother would like M to follow in her footsteps. However, having heard and observed the Mother in giving oral evidence and from what I read from Dr Craigen’s report, her character is not the same as M. I have reservation that he should open up the challenges at the age of 13; M may not be ready for that given his character. 136.Dr Craigen when questioned by Mr Pilbrow disagreed that M is not adapted to change and yet she admitted that it is highly likely that at the beginning it would be tough because it is a big change. She also admits that there would be risk but not high risk, she reconfirms that M would adapt with no social problems. If it is the case, as I have already found that it is not necessary to remove M at this stage, why is there the need to take the risk, albeit not high? 137.Ms Yip in her closing submission said that:
138.In my view, I cannot understand why the parents could not work together to allow M to be independent progressively but to rely on boarding school to train him to be so. 139.I disagree with Ms Yip when she said that the available evidence and the reasonable inference to be drawn from the existing evidence, as indicated by the Father’s oral evidence, is that despite any good intentions, co-parenting is not gaining much mileage and is unlikely to make big strides. 140.The Father said in his oral testimony that since the moment that he cut the umbilical cord, he loved and cared for M and it has been his life and duty. He said the dispute between the 2 grown-ups can be distressful to M and it is the child who is being punished. 141.The Father also said that during the 30-minute debriefing session with Dr Craigen, she said that if co-parenting works, it is better than sending M to boarding school and she suggested the parents to work harder. The Father said that co-parenting has been working for 3 months but was stopped because he thinks the Mother wants to make co-parenting fail so that her application would succeed. He is hoping co-parenting to continue as soon as possible so that Dr Lora Lee can teach them the co-parenting skill. Although the Mother denied the Father’s allegation and said that it was stopped because Dr Lora Lee was on Easter holidays, there is no evidence to suggest that the Mother would not attend the session again since it is for M’s benefit that co-parenting can work effectively. 142.Ms Yip in her closing submission also said that:
143.All I can say is where there is a will, there is a way. No matter how difficult it is, the parties have to try to learn the co-parenting skill because M suffers from the adults’ conflict. Can the parents wake up to the problem and face it? M is the only child of the family and he is a good boy. M is trying to please both parents at the expense of himself suffering. I disagree that it is a wishful thinking to believe the parties can work together with regard to co-parenting. I hope that by seeing Dr Craigen’s report, the parents can come up with some consensus in particular on the child-related issue. In my view, by sending M to boarding school might not reduce the number of litigations in Court. The parties might still come back for my decision as to which boarding school M should attend etc. and in any event, there are still the AR proceedings. Towards the end of this trial, Ms Yip has already informed the Court that she has prepared another Summons for application whether M would be allowed to go to UK this summer. 144.Should M attend boarding school, it is likely that he will continue to see his parents often because the Father reported that he would visit M on a monthly basis should M attend boarding school abroad. The Mother also has the time and financial means to visit him often. Given Dr Craigen’s findings that those conflicts would not be going unnoticed to M, unless the conflicts disappear, M would know no matter whether he is in boarding school or in Hong Kong. All I can say at this stage is that it takes two to tango and yet it takes two to compromise. I have seen cases that have worked. After all, the parents in this case are highly educated. 145.As Dr Lora Lee mentioned in her email to the parties on 20 February 2016[28], “I hope that you come to see me since you have decided that you love M more than you dislike the other parent, and you desire a change in your communication with each other …” 146.Even Dr Craigen said in the last part of her conclusion that:
Conclusion 147.Having considered the matter, and in particular that:
I am not satisfied that M should leave at 13 because I would not take the risk of sending him to a UK boarding school even though the risk is low. Costs 148.As this is a child-related matter and Mr Pilbrow has already submitted that the Father would ask for no cost order, I will make an order nisi that there shall be no order as to costs, to be made absolute at the expiration of 14 days. There shall be certificates for Counsel. Order 149.The Mother’s application is dismissed. 150.Last but not least, it remains for me to express my gratitude to both Ms Yip and Mr Pilbrow for their helpful assistance in this trial.
Ms Anita Yip, SC instructed by Withers, Solicitors for the Petitioner Mr David Pilbrow, SC instructed by Edwin Yun & Co, Solicitors for the Respondent [1] Page 123 of Bundle A [2] Page 7 of Bundle C [3] Page 10 of Bundle C [4] Page 195 of Bundle A [5] page 322 of Bundle A [6] Page 330-331 in Bundle A [7] Page 309 of Bundle A [8] Page 300 of Bundle A [9] Page 300 of Bundle A [10] Page 323 of Bundle A [11] Page 262 of Bundle A [12] Page 305 of Bundle A [13] Page 266 of Bundle A [14] P111 of Bundle A [15] Page 130 of Bundle A [16] Page 88 of Bundle A [17] Page 277 of Bundle A [18] Page 145 of Bundle A [19] Page 330 of Bundle A [20] Page 276 of Bundle A [21] Page 304 of Bundle A [22] Page 491 of Bundle B2 [23] Page 271 of Bundle A [24] Page 586-601 of Bundle B2 [25] Page 600 of Bundle B2 [26] Page 299 of Bundle A [27] Page 586-601 of Bundle B2 [28] Page 563 of Bundle B2 | ||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under FCMC 14649/2014