A v. B

FCMC 9824/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 9824 OF 2015

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RULING
(Choice of schools and access arrangement)

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Introduction

1.There are two applications before me that now require determination. The first dated the 26 April 2016 is an application by the Petitioner mother for leave for the child of the family, a little girl called C who was 5 years old on Saturday to attend a new school. The mother wishes the child to attend year one at the School Q. The father for his part wishes her to remain at School R and to retake K2. There are difficulties with both suggestions which I will go into in more detail below.

2.Time is of the essence with respect to the schooling issue given that the School Q term starts on Monday the 22 August and the School R term commenced last week. I directed that C start at School R as I could see little harm in her doing so. This was however without prejudice to any final decision on the matter.

3.The second application is the father’s summons for overnight staying access from after school on Friday each week until 6:00 pm on Sunday or on any other two nights during the week. This summons is also dated the 26 April 2016.    

Background

4.Both counsel have set out the background to this matter in their respective submissions. Mr Pilbrow S.C. for the mother says as follows:

(i) Both the Petitioner’s and the Respondent’s families emigrated to Australia in 1984.  As a result both parties received most of their secondary and the whole of their tertiary education in Australia.  The parties and C carry HKSAR and Australian passports.  Both parties returned to Hong Kong after graduation in 1992.  The parties met in 1996 and married in 1999.

(ii) C was born on XX August 2011 and will thus very shortly be 5 years old.  The Petitioner ceased employment in 2008 and so became C’s primary carer from birth.  The parties separated for 9 months or thereabouts in 2004 but reconciled.  From 2012 onwards, both parties, according to the Social Welfare Officer, accept that their marital relationship deteriorated.  In July 2014, the Respondent moved out of the matrimonial home and in July 2015, the petition herein was issued.

(iii) C started attending School R commencing in September 2013.  She started in K1 in 2014 and K2 in 2015. Normally, C, would be set to commence K3 this month, but the school has indicated that, if she is to continue at School R, then they would require her to repeat this year in K2.  The Petitioner believes that the environment and teaching methods of School R do not suit C at this time and wishes her to attend an international school, namely School Q.  It appears to be common ground that C should attend School S in Sydney, Australia in Year 7, where she had already been accepted.

(iv) With the assistance of a mediator, the parties were able to agree an interim arrangement for the Respondent’s ongoing access to C.  C continues to live at the former matrimonial home with her mother.  The access arrangements so agreed were incorporated into an order of the Court dated 28^th December 2015 (A1/171 Tab 13).  In accordance with that order, the Respondent has access as follows:

(a) from 8:30 - 9:00 a.m. to take her to school 2 times per week provided that he notifies the Petitioner of the days he wishes to take C to school by 8 p.m. on the Sunday previous.  If he has to miss such access due to his work schedule, he is entitled to make-up access within the following week.

(b) on Thursdays from 5:30 - 8:30 p.m. for dinner.  Again, if he is unable to exercise such access due to work requirements, he is entitled to make-up access within the next 7 days.

(c) 2 extra access times each month between 5:30 - 8:30 p.m. provided he gives 7 days prior notice by 8p.m. on a Sunday informing the Petitioner of which day during the forthcoming week he would like to exercise such access.

(d) Access on Saturdays from 9:30a.m. to 8:30 p.m.

(e) Single public / school holidays on an alternating basis.

(f) Staying access for half the school holidays.

(v) The Respondent seeks to vary such access.  His proposals to the extent of variation have changed since the issue of his summons.

In the interests of saving some time I have taken the liberty of reproducing Mr Pilbrow’s shorter summary in full as set out above.

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:

(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;

6.Both sides have also referred me to a number of different cases on point which I have taken into account when coming to my decision.

Discussion

7.I shall now turn to consider the issues, the law and the parties’ evidence as set out in their affidavits and respective Children’s Forms – Form J.

Choice of schools

8.As set out above it seems to me that there is some difficulty with each suggested school. As indicated during the hearing I also intend to direct that C have an educational assessment in order to rule out any possibility of a learning issue. I will also expect C to have some kind of therapeutic support going forward. Dr Y has diagnosed her with having a mild separation anxiety disorder and this will need to be addressed. Likewise I will expect both parties to have some therapy/counselling as recommended by Dr Y. For the avoidance of doubt Dr Y should not take on the role of the recommended therapist or counsellor. 

9.I accept that if C enrols at School Q that that will mean that she will be effectively barred from applying later for either a local school or a Direct Subsidy School. Both of these options would normally require a pupil to have completed K3 prior to entry. Therefore if she moves to School Q she will of necessity have to remain in an international school environment for the remainder of her primary school years.  

10.As C is presently one of the youngest in her class, if she repeats K2 that she will then become one of the oldest in her class. Consequently she will not proceed to P1 until she is over 7 years of age. School R identified this as a possible issue when they wrote to the solicitor’s for the mother on the 4 July 2016 inter alia in the following terms:

Our recommendation that C repeat K2 in the year 2016/17 was made with C’s best interest at heart.

Over the years, we have had a number of students repeat their K2 year.  It is our experience that these students have benefitted from doing so, not only in terms of their academic progress, but also in terms of their self-confidence and social skills.  The students who repeat will typically be young for his/her age group, and repeating the year gives them the opportunity to catch up with their peers in any aspects in which they may be less advanced, with less pressure than they otherwise would feel if they continued onto K3 immediately.  Amongst other things, the students who have repeated have enjoyed a broader range of options for primary school as a result of the additional time spent in kindergarten. As to the possible emotional impact which repetition of a year may have on a child, the school has in past cases always been sensitive to this issue, and our teachers and staff work together to ease the child into his/her new class. Repeating a year is not intended to be some form of “humiliation”, but rather, an opportunity for the child to become more confident in his/her abilities. The feedback we have received from the parents of students who have repeated their K2 year in the past has generally been very positive, and they have been glad to have had the opportunity of repeating.

The school believes that C is a student, who would benefit from repeating the K2 year. Hence we made the recommendation that we did (and not by reason of some “favour” to C’s paternal family, as you suggest).  Previously, we had not made the recommendation to repeat as C is August-born, so we had some concerns as to whether this would lead to her subsequently being over-aged for the primary school intake in September 2018.  We have since looked further into this following the case of another student who will be repeating a year and we understand that whilst government and aided schools may have restrictions as to the age range of students which they can accept, other schools are not so bound.  Nevertheless, as we have pointed out to C’s parents, this does rule out some primary schools from consideration in the future.  On the other hand, this should be weight against the range of primary schools which would accept C if she were to continue on with K3 at this stage.

We are aware that C has been accepted by School S in February 2024.  I would make the general observation that since the start of the academic year in Australia (January/February) differs from that in Hong Kong, students from Hong Kong going to school in Australia will in any event either be repeating or skipping part of a year’s schooling, so there is no direct correlation between the school grade which a student is leaving in Hong Kong and the grade which he/she is entering Australia.  If School S has already accept C for entry in 2024 then whether or not she has to repeat K2 should not be of any real concern.  What will be important is whether C is sufficiently prepared for her new school, which will depend in part on which primary school C attends and the standard of educational and care she receives there.

11.According to the document produced by the mother’s legal team after lunch, C may be afforded a low priority in the allocation system in the Primary One Admission System in the event that she is “over aged”. This document stated as follows:

Primary One Admission System

1. All children with the right of abode in Hong Kong and reach the age of 5 years 8 months (as at 1 September of the year of entry to P1) are eligible to participate in the POA System except those who are already attending a primary school or have been allocated a P1 place previously. Direct Subsidy Scheme (DSS) primary schools, private primary schools and primary schools of the English Schools Foundation are excluded from the POA System.  Parents who wish to send their children to these schools may apply direct to the schools.

2. Entry to primary schools will as at present be compulsory from the start of the school year following the child’s reaching the age of 6, but will be permitted from 5 years 8 months.  It is not intended, for the time being, to allow new entrants to Primary 1 to join the class other than at the beginning of the school year. The effect of this in practice is that children entering Primary 1 will range in age from 5 years 8 months to 6 years 11 months. Parents will be encouraged, where applicable, to take advantage of the opportunity to enter their children before the age of 6.

3. To ensure that this relatively wide age range does not become even wider, it is intended to enforce rigorously the regulations governing the age of entry to primary school described in paragraph 2.13.  In Chapter 7 the intended method of allocating Primary 1 school places, which is primarily based on parental choice, is described.  Any over-age children applying for Primary 1 places will be accorded very low priority in this allocation.

For the avoidance of doubt I accept that to be the case.

12.Thus if C repeats K2 at School R she is likely to be limited in her choice of schools for primary 1, in the event that her parents wish her to be educated in the local system. The father has indicated that this may not be the case and that he would be interested in reapplying for School T (C’s application this year was not successful). In any event the parents would still have a relatively wide choice as they would still be able to apply for Direct Subsidy Schools, private local schools, English School Foundation schools and other international schools.    

The mother’s case

13.In a nutshell the mother’s case is that she had been informed by School R that C was struggling academically and that the parents should consider other alternative schools for her. Consequently the parties applied to School T and School Q. At that stage there was no suggestion that C could repeat K2. In any event the mother is now concerned with the stigma attached to C repeating a year. She points out that School R is a very academic traditional school and she believes that C would do better in an international school environment. She believes that the father and/or his family have pressurized School R to put forward the proposal that C repeat a year.

14.The father for his part is very concerned that C may be removed from a school with a proven track record to one that is new on the market. He is strongly of the view that the parents should take up the offer from School R and that this is the very best alternative at the present time. He denies that he or his other family members have asserted any pressure on School R and he seems somewhat dismayed by the mother’s insistence that C start School Q today.

The reports  

The Social Investigation Report

15.Recommendations made to the court in social welfare reports and psychologist reports although not binding are generally considered to be persuasive. In this instance there were two reports from the social welfare officer, the latter being the most important for the purposes of this Ruling. This is dated the 15 July 2016. In addition the court benefitted from a report from a psychologist – Dr RY dated the 8 August 2016.

16.The social welfare officer helpfully provided an in depth report from direct contact with staff at School R as follows:

15. C studies K.2 in School R at present.  She attends English class in the morning session.  According to Ms M, C’s English class teacher, C showed improvement, but not significant, on her academic performance, in recent few months. Comparing the assessment arrangement for two terms of K.2, C needed Ms M to sit beside and offer assistance to her in Term 1 while she could do assessment paper by herself in Term 2.  C managed appropriately her listening assignment or story telling activities.

16. However, C was not confident to ask for questions; and to come to seek help from teacher.  C was required to do a lot of worksheets in class, but she usually completed it beyond schedule time.  C was far behind the basic reading requirement of the school syllabus.  Ms M elaborated that the school syllabus consisted of large amount and high standard of reading work or vocabulary building.  She considered C to reach less than half of the requirement.  She observed C spent much more time than others in vocabulary work.  Ms M furthered that she offered assistance to C individually in class for about 5 mins daily; gave much reinforcement to C and allowed her parents keeping the student’s reading cards for longer periods of time for revision at home.  She considered no other extra assistance could be offered to C in classroom and opined that C’s present performance was an individual learning difference and partially influenced by her previous unpleasant mood resulted from parental separation.  C needs much assistance in catching up the present English syllabus.  On the other hand, Ms M observed that C showed stable mood for changing class routine and was helpful to other classmates.

17. C attends Chinese class in the afternoon session.  According to Ms W, C’s Chinese class teacher, C was attentive in class and cheerful with classmates.  She was observed to have average learning ability and neat hand writing.  C was weak in identifying vocabulary in the last term, but she showed significant improvement in recent assessment in June 2016.

18. However, C was passive in reading vocabulary in class due to lack of confidence.  With much encouragement, C was willing to read the assigned words.  Hoping to provide her more practice in class, C was selected to play the reading games several more time, but she showed anxious reaction for playing.  She failed to meet the vocabulary dictation requirement.  When she failed to perform the required work, C easily cried in class.  At present, C did not catch the academic requirement of the school syllabus.  Ms W elaborated that she spent much time in teaching Maths and General study in class with no class assignment. C needed to complete homework assignments at home with parents’ assistance. She also taught student much writing work in class.  As Ms W’s observation, C sometimes was not confident and needs much assurance in writing, but she was self-aware her weakness and showed her beautiful handwriting to teacher.  She liked drawing and was creative in learning.  C had comparatively weak performance in abstract and logical thinking concepts in Maths, but she considered it the individual learning difference at this young age.  Ms W also explained that C failed to meet the school academic requirement because of C’s younger age in class and very high standard of the school syllabus.  Ms W shared that she could only pay individual attention to C in class when the teaching schedule was not tight at lessons.  Ms W did not sure that C would have good academic performance even though she repeated K.2 when she became older at that time, but she was sure that C would encounter much difficulty if she would promote to K.3 in coming school year.

19. School visits were conducted during this adjournment.  C’s school worksheets, homework book and assessment papers were seen.  It showed that C’s handwriting performance was consistent in worksheets and homework books.  She sometimes erased the untidy writing.  For the assessment papers, C needed to answer a series of different types of questions which required student to have comprehension skill, good memory, writing (copying words) and good dictation.  C used different colours in the drawing column of assessment paper.

20. Ms X, the school Principal and Ms Z, the Vice-Principal were met during school visit on 28.6.2016.  Ms X emphasized that school would provide good Chinese learning with Cantonese as teaching media and building students with strong English reading and self-learning skills.  Both Ms X and Ms Z informed that C was not up to standard of K.2 academic requirement and was not desirable for promotion to K.3 at the present stage.  Ms Z furthered that C caught up almost half of the requirement of school syllabus.  Both opined that C’s learning incapability related to her younger age in class, so she naturally was able to acquire better academic performance when she grew older.  Being a repeater, C would be familiar with the syllabus and served as a “Big Sister” in class, so C’s confidence would be boosted up at that time.  Both assured that different class materials with similar K.2 standard would be used and the class teacher would pay attention to C, so as to avoid labelling effect or loss of study interest. No other school support outside class was mentioned upon enquiry.

21. Observation to C was arranged in English class on 28.6.2016.  During the process, C was attentive and well participated in teaching time.  She raised her hand to answer questions occasionally.  Being chosen, C wrote the answer (her name) on the whiteboard.  During snack time, C approached teacher for extra food by herself and chatted with classmates happily.  She initiated questions to teacher about the artworks on the notice boards.  When C was required to complete worksheet in class, she used pencil to write first.  She repeatedly sought teacher’s assurance before or after writing and she was reminded of appropriate writing skills.  When teacher offered support by sitting near her, C moved her seat next to teacher happily.  She looked at other’s writing from time to time.  C moved back to her original seat about a few minutes later when she completed writing column.  She then used colour pens to decorate her writing.  During the process, she asked her classmates twice for getting colour pens, but she was ignored.  She showed a disappointed face and sat there a while.  Until another classmate got the colour pens basket for her, she started to colour her rainbow writing.  When card-reading time, C was the last one as she completed her worksheet late.  The other students played the toys when she was reading.  C needed much hints in reading card before teacher.

17.The Social Welfare officer concluded that C was more suited to “an international school mode of learning” and that the mother should make the school arrangement for C. Ms Rattigan said, and I would agree with this, that it is wrong as a matter of principle where parties enjoy joint custody and where there is disagreement, to allow one party to make such an important decision over the obvious disagreement of the other. 

The Psychological Report

18.Dr Y recommended that:

22. At the end of this past school term, School R recommended that C repeat her study in K2.  Apart from the unfavourable factor that she was the youngest in her class, it was also very likely that C’s performance anxiety impeded her from manifesting her academic potential.  Given that School R is a highly competitive traditional school, C would feel strong pressure to perform.  Yet having also to deal with abundant stressors in her home life, it is understandable why her study results did not measure up.  In contrast, her private tutors in English and Chinese language both concurred that C was an enthusiastic and effective learner.

23. Before C’s parents could settle their nonstop battles and unwittingly put C right in the middle of their battle ground, they are bound to lose sight of what is best for their child.  At this juncture, an educational environment that could facilitate C’s optimal learning would be one in which the school personnel would be understanding and accepting of C’s need for emotional security and that more time, attention and instructional support are available from teachers.

19.I should add that there is nothing to suggest that the school personnel at School R are not understanding or accepting of C’s needs or that the staff at School Q would be better suited to cater for this than the staff at School R. Neither is there any evidence to support the suggestion that the staff at School Q would be able to provide more time, attention or instructional support than their counterparts at School R. 

Conclusion

20.I accept that in due course it may be sensible for C to change schools and that a more international school environment may be a better option for her in the long run. I am though concerned that by placing her in an international school environment at the present time that I may be limiting her educational options considerably going forward. This is of particular concern given that her family are a traditional middle class Cantonese family. I accept that in keeping with a great many other families in Hong Kong the father’s preference is that C should have a strong grounding in Chinese culture first – which normally means a strong grounding in Cantonese – both spoken and written before she goes to school in Australia for her senior years. As I understand it the School R caters for this – i.e. a desire for a strong foundation in Cantonese plus some emphasis on English. As I understand it the expectation often is that the children will then be expected to pick up Mandarin later – which presumably is where School T came in – given its emphasis on Mandarin as a teaching medium. This approach has much to recommend it – but it doesn’t suit all children. It may not suit C longer term. In the short term however, and as indicated above, I would like her to be tested to make sure that she does not have any educational problems which might preclude this sort of approach.

21.Given these concerns it seems to me that it would be more appropriate for C to remain at School R and to repeat K2. If she has an educational issue that needs to be addressed and/or she does not do well, even by repeating K2, then the parents may have no alternative but to enrol her in a different school going forward. In that event School Q may be one option to consider. I have no doubt that there may be others. If however there are no learning issues to be addressed and she does well by repeating then she should be able to progress to K3. In that event the parents will have a much wider choice of primary schools than if they moved her into the international school environment now – even with the cut off point of 6 years 11 months. I have also taken into account the comments made by School R in the letter sent to the mother’s solicitors as set out in paragraph 10 above namely that repeating a year should make little difference if the ultimate goal is that she should study in Australia in her senior years.      

Access arrangements

22.There have been difficulties over access previously which led initially to the court orders dated the 6 August 2015 and the 12 October 2015. The parties then sensibly entered into mediation which led to the consent order dated the 28 December 2015. They agreed inter alia that they would share parental responsibility and that they would have joint custody of C with defined access to the father. Given the father’s heavy work schedule which also necessitated regular overseas travel, the party’s also agreed as follows:

E.   AND UPON the Petitioner and the Respondent agreeing to vary the Respondent’s access to C under the Order as follows:-

(1) The Respondent shall have access to C from 8:30 am to 9:00 am to take her to school two times a week during school days Provided That the Respondent will send a prior notice to the Petitioner by 8:00 pm on every Sunday through the designated email account or WhatsApp group informing the Petitioner which of the two days in the forthcoming week he would like to take C to school or he is only available to take C to school for one day only in the week or none at all.  If the Respondent has to miss his access due to his work schedule under this subparagraph, he is entitled to have a makeup access within 7 days from the date when access was missed i.e. within the following week but not any otherwise.

(2) The Respondent shall have access on Thursdays from 5:30 pm to 8:30 pm for dinner.  If the Respondent has to miss his access due to his work schedule under this subparagraph, he is entitled to have a makeup access within 7 days from the date when access was missed i.e. within the following week but not any otherwise.

(3) The Respondent shall have two extra access times to C every month from 5:30 pm to 8:30 pm for dinner (“Extra Dinner Time”) Provided That the Respondent shall send a 7 days’ prior notice to the Petitioner through the designated email account or WhatsApp group by 8:00 pm on a Sunday informing her which day during the forthcoming week he would like to have the Extra Dinner Time.

(4) Access on Saturdays from 9:30 am to 8:30 pm.

(5) Single public/school holidays shall be alternated between the parties.

(6) The Respondent shall have staying access to C for half of the school holidays Provided That during the staying access the Petitioner’s maid shall be allowed to stay with C throughout the whole time until one month after the Respondent’s new maid started to work for the Respondent.  Regarding the school holidays which consist of the Christmas and New Year Holidays, the Chinese New Year Holidays, the Easter Holidays and the Summer Holidays, the parties agree that it will be divided into two periods as first half and second half to be shared between the parties on an alternate basis.  Commencing from the school holidays starting in 2016, the Respondent will have C for the first half and the Petitioner will have C for the second half in the even years (e.g. 2016, 2018, 2020, etc.). This arrangement is reversed in the odd years (e.g. 2017, 2019, etc.) where the Petitioner will have C for the first half and the Respondent will have C for the second half.  It is further understood by both parties that either party can take C on overseas vacation so long as the duration is within the period in which the parent is entitled to have C.

(7) For the avoidance of any doubt, it is agreed that save and except as provided in Clauses E(1) and E(2) above, there is no makeup access to be arranged if for any reason whatsoever the Respondent cannot attend any of other access time provided in the above.

23.Unfortunately difficulties have continued with respect to weekly staying access and although the father has for example recently taken C away over the summer for a short break in Taiwan, the mother remains resistant to regular overnights during the week in term time.

The father’s proposal

24.In light of the recommendations in the reports (please see paragraph 25 and 26 below) the father has put forward the following proposals on a week on week off basis:

71.

First Month after the Order
	For the 2 weeks when he does not need to travel	For the 2 weeks when he is travelling
Morning Access	8:30am to 9:00am every Monday, Wednesday and Friday to take C to school	No access scheduled
Thursday Dinner Access	5:30pm to 8:30pm for dinner	5:30pm to 8:30pm for dinner if he happens to be in Hong Kong - notice will be given
Extra Dinner Access (as per the existing Order)	5:30pm to 8:30pm on Monday	5.30 to 8.30pm for dinner if he happens to be in Hong Kong - notice will be given
Weekend and Overnight Access	Friday night at 5.30pm until 8.30pm on Saturday	Friday night at 5.30pm until 8.30pm on Saturday. Due to his travel arrangements he sometimes may not be able to be back until late on Friday night, if this occurs he would like the Mother to be amenable to changing this so that the access is from 9.30am on Saturday to Sunday at 9.30am.  He will give as much notice as possible.
Second Month after the Order After one month of one night staying access per week the Father would like to build up to having two nights as follows:
	For the 2 weeks when he does not need to travel	For the 2 weeks when he does need to travel
Morning Access	8:30am to 9:00am on Monday, Wednesday and Friday to take C to school	No access
Thursday Dinner Access	5:30pm to 8:30pm for dinner	5:30pm to 8:30pm for dinner if he happens to be able to be in Hong Kong - notice will be given
Extra Dinner Access	5:30pm to 8:30pm on Monday	5.30pm to 8.30pm if he happens to be in Hong Kong - notice will be given
Weekend and Overnight Access	5.30pm on Friday until 9:30am on Sunday	5.30pm on Friday to 8.30pm on Saturday. Due to his travel arrangements he sometimes may not be able to be back until late on Friday night, if this occurs he would like the Mother to be amenable to changing this so that the access is from 9.30am on Saturday to Sunday at 9.30am.  He will give as much notice as possible.

72.	In addition to the above, the arrangement of the alternate and sharing of public/school holidays, as per Recitals E(5) and E(6) of the Consent Order should remain unchanged.

The mother for her part says that she will be guided by the recommendations made in Dr Y’s report.

The Reports

The Social Welfare Report

25.The Social Welfare officer recommended in her updated report dated the 15 July 2016 that:

40. In view of above, I thus recommended that the Petitioner, A, should make the school arrangement of the child, C at present, the Respondent, B, be granted the weekly weekend staying access for 1 or 2 nights at their agreeable time from Friday evening to Sunday morning, provided that B would be available to provide emotional support to C directly during her bedtime.

The Psychologists Report

26.Dr Y for her part emphasized the need as highlighted by Ms Rattigan, for C to have familiarity, stability and predictability if she was to formulate a much needed sense of security. In making her recommendations as adopted by the mother she said that:

23. C’s separation anxiety disorder indicated that she was suffering from harmful effects of her parents’ divorce and ensuing emotional battle.  Based on observations of C’s reactions to access arrangements in the past months, I recommend that some adjustments be made so C’s developmental needs for emotional security be given top priority:

a. Twice a week morning access be removed

b. Weekly evening access on Thursdays

c. Weekly weekend access from Friday evening to Saturday night, with overnight staying access on Fridays, provided that the father would be available to follow a bedtime routine and rituals so that the child’s trust in dependency on her parents can be ensured.

d. When C overcomes her anxiety disorder and she becomes mature enough to indicate her preference, extending the weekly overnight staying access to two nights could be feasible.

e. Single public/school holidays alternated between the two parents as previously enforced.

Conclusion  

27.It is important that both parents have regular quality time with their daughter preferably in a stress free environment. At present C has an Extra Curricular Activity on most days after school as follows: Tuesday – Chinese,
Wednesday – English,
Thursday – Picasso and Art
Friday – ballet.
In addition I was told that the father takes her to swimming lessons on Saturday and that she also enjoys other ad hoc interest classes.

28.Unfortunately C is struggling a little. In the words of Dr Y:

19. Her anxiety is mostly manifested in her hyper-vigilance when away from her primary attachment figure, namely her mother, refusing to sleep alone, taking a long time to fall asleep, bed-wetting, nightmares and her poor school performance. It is most likely that her anxiety is related to the lack of appropriate parental interaction, extensive parental conflict, tension from the divorce proceeding, being overly protected by mother on the one hand and ambivalent reaction toward father on the other.

29.This needs to be taken into account in any order that I now make for access. I accept therefore that it is important that as far as possible there is some form of regularity in the contact that C has with her father. Consequently I suggested that during his “week off” that the party’s consider a skype date between Father and child. I also accept that the early mornings, when the father has traditionally taken C to school may cause more harm than good at present and should be removed for the time being.

20. A few issues emerged with the access arrangement of B to his daughter in the past seven months.  It appeared that the morning access twice a week was not particularly conducive to building stability in C’s routine.  Owing to B’s business travel needs, the two morning access often did not fall on the same days in a week.  Although the changes appeared to be small, they caused psychological disruption and forced C to having to make constant adjustment in order to cope.

30.With this in mind I shall make an order on a week on/week off basis as follows:

Week One – Father in town

Monday and Thursday – 5:30 pm – 8:30 pm – dinner access

Overnight staying access from Friday night at 5:30 pm to 8:30 pm on Saturday

Week Two - Father not in town

Monday and Thursday – skype date at time to be agreed between the parties between the hours of 5:30 – 8:30 pm. This may be replaced by dinner access in the event that the father is in Hong Kong. The father to inform the mother, as before, by 8 pm the Sunday before the access is to take place in the event that he wishes to have dinner access with C.

Overnight staying access from Saturday at 9:30 am to Sunday at 9:30 am.

There will be no makeup access.

Costs

31.Given that this is a children’s matter there will be no order as to costs.

The order

32.a) The mother’s summons dated the 26 April 2016 be dismissed;

b) It is further directed that C have an educational assessment, such assessment to be filed at court prior to the adjourned Children’s Appointment;

c) It is also directed that C attend therapy (possibly play therapy) for her mild anxiety disorder and generally. In the event that the parties are unable to agree on the name of a therapist both shall write to the court with no more than two suggestions within the next 7 days. Copies of the therapists CV’s and an indication of the cost involved shall also be provided;

d) It is also directed that both parties have therapy or attend counselling for their own issues as recommended by Dr Y;

e) There be no order as to costs with respect to the mother’s summons dated the 26 April 2016;

f) Paragraphs E (1) – (4) and (7) and order 1 of the court order dated the 28 December 2015 shall be dismissed and replaced by paragraph 30 above. For the avoidance of doubt paragraph E (5) and (6) shall remain in place in so far as they remain relevant;

g) There shall be no order as to costs with respect to the father’s summons dated the 26 April 2016;

i) The Children’s Appointment adjourned sine die with liberty to restore in the court order dated the 28 December 2015 shall be restored and adjourned to the 25 April 2017 at 9:30 am. Both parties shall personally attend that hearing.

j) An updated Social Investigation report to be filed 14 days prior to the Children’s Appointment.     

Mr David Pilbrow SC instructed by Mayer Brown JSM for the Petitioner

Ms Mairead Rattigan instructed by Withers for the Respondent