C v. S

HCMP 929/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 929 OF 2017

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BETWEEN

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J U D G M E N T

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Introduction

1.The plaintiff and the defendant are respectively the father and the mother of a female child who will be 9 years old in November this year.  The present application concerns the parental rights of the father.

2.There has been protracted litigation between the parties over the child (“Child”) since 2010 in the Family Court (“FCMP 67 of 2010”), resulting in no less than 16 published judgments from the Family Court, 3 published judgments for leave to appeal and 1 judgment from the Court of Appeal.

3.So far as the present proceedings are concerned, the father (“Father”) issued the originating summons herein in May 2017 to make the Child a ward of this Court.  In the originating summons, one of the orders sought by the Father is under section 3 (1) (d) of the Guardianship of Minors Ordinance, Cap 13 (“GMO”), for him to have all the rights and authority that the law would allow him as father if the ward were legitimate (“Rights”).

4.The mother (“Mother”) opposes the application. At the hearing for argument on this issue, this Court directed further written submissions be lodged by Counsel, and that the matter be dealt with on paper.

5.Counsel Ms Athena Wong appeared for the Father at the hearing and prepared the first two sets of written submissions.  Mr Russell Coleman SC and she then jointly prepared the further submission in reply.  Counsel Mr Felix Leung appeared for the Mother at the hearing and lodged the written submissions on behalf of the Mother.

6.In this judgment, I have used the word “illegitimate” to describe children born out of wedlock, as this is still the terminology used in our statutes[1]. However, I am conscious that the use of the word “illegitimate” or the expression “illegitimate child” has been considered to be demeaning to the child being referred to and that it offends and violates that child’s dignity, and that one option is to describe children born out of wedlock “non-marital” or “extra-marital” children, as opposed to “marital” children or those born within wedlock.  This will be a matter for the law draftsman to consider in due course.

7.Before I consider the facts of the present case, I will first of all set out the development in England and Wales concerning parental rights of an illegitimate child and also the development in Hong Kong leading to the current s3(1)(d) of GMO.

Development in England & Wales

8.Without going too far back in history, prior to the Family Law Reform Act 1987, the position in England and Wales was provided by s85 (7) of the Children Act 1975, namely while the mother of an illegitimate child is living, she has the parental rights and duties exclusively of her illegitimate child. 

9.The Family Law Reform Act 1987 was then brought in on 15 May 1987, “to reform the law relating to the consequences of birth outside marriage, to make further provision with respect to the rights of duties of parents and the determination of parentage, and for connected purposes”.  The 1987 Act provides for no distinction is to be drawn between a child whose parents are married and one whose parents are not, for the purposes of an application made under s9 of the Guardianship of Minors Act 1971[2]. 

10.So far as parental rights were concerned, these however still rest in the mother of a child born outside marriage, although s4 (1) of the Family Law Reform Act 1987 provides that on the application of the father of an illegitimate child, the court may order that he shall have all the parental rights and duties with respect to the child.

11.Mr Coleman and Ms Wong had referred to the case of Re H (Illegitimate Children: Father: Parental Rights) (No 2), [1991] 1 FLR 214, a decision of the English Court of Appeal in November 1990, which related to an application for a parental rights order under s4 (1) of the Family Law Reform Act 1987.  As explained by Balcombe LJ[3], the method adopted by s4 (1) of the 1987 Act was not to equate the father of a child born out of wedlock with the father of a legitimate child and this was because the position of the natural father can be infinitely variable, namely that at one end of the spectrum his connection with the child may be only the single act of intercourse (possibly even rape) which led to conception and at the other end of the spectrum he may have played a full part in the child’s life from birth onwards, only the formality of marriage to the mother being absent. 

12.Further, Balcombe LJ said :

“In considering whether to make an order under s4 of the 1987 Act, the court will have to take into account a number of factors, of which the following will undoubtedly be material (although there may well be others, as the list is not intended to be exhaustive):

(1) The degree of commitment which the father has shown towards the child;

(2) the degree of attachment which exists between the father and the child;

(3) the reasons of the father for applying for the order[4].”

13.S4 (1) of the Family Law Reform Act 1987 was the predecessor of s4 (1) of the Children Act 1989. When the Children Act 1989 came into effect on 16 November 1989, s4 (1) became:

“4 (1)Where a child’s father and mother were not married to each other at the time of his birth —

(a) the court may, on the application of the father, order that he shall have parental responsibility for the child; or

(b) the father and mother may by agreement (“a parental responsibility agreement”) provide for the father to have parental responsibility for the child.”

14.As seen in the Children Act 1989, by then there had been a shift in England & Wales from the concept of “custody” and “parental rights” to “parental responsibility”, and this was reflected in the then s4 (1) of the 1989 Act.

15.Balcome LJ also gave the leading judgment in Re E (A Minor) (Parental Responsibility) [1994] 2 FCR 709.  Further to what he had held earlier in Re H, he had also referred to a subsequent case of the Court of Appeal, namely Re C (Minors) (Parental Rights) [1991] FCR 856 which was in relation to an application for a parental rights order under the 1987 Act by the father of illegitimate children.  Mustill LJ in giving the judgment of the court in Re C, had referred to the factors which could be relevant to the making of a parental rights order, even in circumstances where the father was not having physical contact with his children.

16.Balcombe LJ in particular quoted the following passage of Mustill LJ in Re C:

“Though existing circumstances may demand that his children see or hear nothing of him, and that he should have no influence upon the course of their lives for the time being, their welfare may require that if circumstances change he should be reintroduced as a presence, or at least as an influence, in their lives. In such a case, a [parental rights order] , notwithstanding that only a few or even none of the rights under it may currently be exercisable, may be of value to him and also of potential value to the children[5].”

17.Balcombe LJ concluded in Re E that he would certainly approach any application for a parental responsibility order under the Children Act 1989 by a father who has shown the degree of attachment and commitment to this child as the father has shown to C in Re E on the basis that such an order would be prima facie for the welfare of the child, and that he would require to be convinced by cogent evidence that the child’s welfare would be adversely affected by the making of such an order.

18.s4 (1) of the Children Act 1989 underwent substantial amendments in 2003, and at present, ss4 (1), (1A), and (1B) of the 1989 Act  state:

“(1) Where a child’s father and mother were not married to each other at the time of his birth, the father shall acquire parental responsibility for the child if —

(a) he becomes registered as the child’s father under any of the enactments specified in subsection (1A);

(b) he and the child’s mother make an agreement (a “parental responsibility agreement”) providing for him to have parental responsibility for the child; or

(c) the court, on his application, orders that he shall have parental responsibility for the child.

(1A) The enactments referred to in subsection (1)(a) are —

(a) paragraphs (a), (b) and (c) of section 10(1) and of section 10A(1) of the Births and Deaths Registration Act 1953;

(b) paragraphs (a), (b)(i) and (c) of section 18(1), and sections 18(2)(b) and 20(1)(a) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965; and

(c) sub-paragraphs (a), (b) and (c) of Article 14(3) of the Births and Deaths Registration (Northern Ireland) Order 1976.

(1B)   The [Secretary of State] may by order amend subsection (1A) so as to add further enactments to the list in that subsection.”

Development in Hong Kong

19.So far as Hong Kong is concerned, GMO first came into effect on 17 February 1977.  In 1982, there were legislative amendments/replacement of section 3 subsection (1) (a)(ii) and (b) (“1982 Amendments”) and after the 1982 Amendments, section 3 became as follows:

“3. (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 welfare of the minor as the first and paramount consideration and in having such regard shall give due consideration to —

(A) the wishes 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; and

(ii) shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father; (Replaced, 69 of 1982, s.2)

(b) a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other.

(2)   Paragraphs (a)(ii) and (b) of subsection (1) shall not apply in relation to a minor who is illegitimate. (Replaced, 69 of 1982, s.2)”

20.The 1982 Amendments have removed any superior rights a father may have over the mother historically under common law, and to state that a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal. However, as seen above the 1982 Amendments do not apply in relation to a minor who is illegitimate.  At the time, applications relating to an illegitimate child would have to be brought under the Affiliation Proceedings Ordinance, Cap 183 which came into effect on 7 October 1971 and which was finally repealed in 1997.

21.The background leading to the 1982 Amendments can be gleaned from the Report on Illegitimacy issued by the Hong Kong Law Reform Commission in October 1991 (“1991 Report”).  Although none of the Counsel had referred to this report, I find it helpful in understanding the development leading to s3 (1)(d) of GMO.

22.It is stated in paragraph 2.21 of the 1991 Report, at common law, parental and custodial rights over a legitimate child resided with the father to the exclusion of the mother and no one possessed parental or custodial rights in respect of an illegitimate child[6].  The 1991 Report referred to the case of Barnardo v Mchugh [1891] AC 388, which held that at equity the wishes of the mother were a primary consideration for the court when exercising its equitable powers in respect of the custody of an illegitimate child, but there was some doubt as to the application of that case in Hong Kong. 

23.As set out in the 1991 Report, the Explanatory Note to the Guardianship of Minors (Amendment) Bill 1982 indicates that the intention of the 1982 Amendments was to retain the application of the equitable principle which gives the mother of an illegitimate child a greater claim than the father.  As pointed out in the 1991 Report, it may be inferred from this that although the welfare of the child is the paramount consideration in all custody disputes (see the then s3 (1)(a)(i) which applies to all proceedings involving children, whether legitimate or illegitimate), in proceedings involving an illegitimate child the court must also consider the superiority of the claim of one parent over that of the other.  In the case of an illegitimate child this would mean that the mother’s claim would be superior to that of the father[7].

24.However, as further pointed out in the 1991 Report, Mr Leonard Pegg, in an article published in Hong Kong Law Journal in 1983 had commented and suggested that “the law has been drastically changed” and that, if the welfare of the child is paramount, the inherent superiority of one parent’s claim over the other should be no more relevant in relation to an illegitimate than to a legitimate child[8]. 

25.It was recognized in the 1991 Report that by then the child’s interest had already invariably been considered as paramount and less weight had been attached to parent rights in disputes over custody before the court, whether child be legitimate or illegitimate.

26.About 7 years after the 1982 Amendments, the United Nations Convention on the Rights of the Child was adopted by the States Parties on 20 November 1989, and later came into force on 2 September 1990.

27.It was probably in light of the UN Convention that in December 1989 the matter of illegitimate persons was referred to the Law Reform Commission (“Commission”) which eventually led to the 1991 Report.  The terms of reference for the Commission was “To consider the law relating to legitimation and illegitimate persons, having particular regard to the provisions of the International Covenant on Civil and Political Rights, and to recommend such changes in the law as may be thought necessary”[9]. 

28.In the 1991 Report, the Commission had considered, amongst other things, the legal effects of illegitimacy and the law in other jurisdictions and concluded that change was necessary.  The Commission came to the view that the law should be changed to provide a general rule that there be legal equality for all children, regardless of the marital status of their parents, and that this general rule should be subject only to specific limited exceptions, and that in reaching that conclusion, the Commission had taken particular of the reasoning and approach of the English and Scottish Law Commissions[10].

29.I will not repeat here all the discussions in the 1991 Report which ultimately led to the amendments in 1993 of the GMO, in particular the addition of ss3 (1)(c)(ii) and 3 (1)(d).  Suffice to say, the Commission had considered the pros and cons of three main alternatives, namely (1) to grant all parental rights automatically to parents, married or unmarried and to provide the mother with the legal means to seek a court order to remove the father’s parental rights in certain circumstances ; or (2) to grant parental rights automatically to unmarried father who were cohabiting with the mother for a special period; or (3) to grant parental rights automatically to the mother, whether she is married or unmarried to the father, but to grant the father those rights and responsibilities only by virtue of marriage or by a court order[11].

30.As for (1) above, the Commission was of the belief that the paramount concern in allocating parenting rights (as in so many other areas of family law) should be the welfare of the child, and that end would be met by providing that parental rights would be automatically granted to all parents, married or unmarried, but it would have the undesirable effect of, for instance granting rights to a father who had had no contact with the mother since the act of intercourse resulting in the child’s birth, and that such a situation would be a source of constant uncertainty for both mother and child, with the possibility that the absent father might at any stage assert his parental rights when it suited him.  Providing the mother with the legal means to seek a court order removing the father’s parental rights in such circumstances would resolve the situation but the Commission did not think it reasonable that the law should place that burden on the mother in order to protect the child’s welfare.

31.Further, the Commission had referred to there being general agreement on consultation to the Scottish Law Commissions’ view that “it would not be desirable to give the father of an illegitimate child parental rights automatically.  This would give rights to fathers where the child had resulted from a casual liaison or even from rape; it would fail to recognize that many men do not have any continuing relationship with their illegitimate children. It would cause offence to mothers who had struggled alone to bring up their children with no support from the fathers”[12] (Scottish Law Commission Report No 82, at paragraph 2.5).

32.The concerns of the Commission on alternative (1) were thus  quite clear, and the main reason for not recommending (1) was the Commission shared the views of the English and the Scottish Commissions, namely that fathers who do not have any continuing relationship with their illegitimate children should not be granted automatically parental rights, eg in a case where the father was a rapist and/or had only one act of intercourse with the mother, and thereafter had no continuing relationship with the child.

33.The current s3 of GMO states:-

“3. (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 a 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—

(Amended 1 of 2012 s4)

(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

(Amended 1 of 2012 s4)

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

(ii) shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father; (Replaced 69 of 1982 s2)

(b) except where paragraph (c) applies, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other;

(Amended 17 of 1992 s19)

(c) where the minor is illegitimate—

(i) a mother shall have the same rights and authority as she would have by virtue of paragraph (b) if the minor were legitimate;

(ii) a father shall only have such rights and authority, if any, as may have been ordered by a court on an application brought by the father under paragraph (d);
(Added 17 of 1993 s19)

(d)   the Court of First Instance or a judge of the District Court may, an application, where it is satisfied that the applicant is the father of an illegitimate child, order that the applicant shall have some or all of the rights and authority that the law would allow him as father if the minor were legitimate.

(Added 19 of 1993 s19. Amended 25 of 1998 s2)

(2)   Subsection (1)(a) shall have effect as regards any application under subsection (1)(d).

(Replaced 17 of 1993 s.19)

[cf 1971 c3 s1 UK; 1973 c29 s1(1) UK]”

34.The 1991 Report thus provided detailed background which led to the various amendments in s3 of GMO, in particular the addition of s 3(1)(d) (“1993 Amendments”).

35.The 1993 Amendments have brought into effect in Hong Kong s4 (1) of the Family Law Reform Act 1987.  Since then, there have been no substantial changes to s3 (1)(d) of GMO.  However, as seen earlier, in England & Wales, s4 (1) of the Family Law Reform Act 1987 was replaced by s4 (1) of the Children Act 1989 and then underwent substantial changes in 2003.  Thus, the Hong Kong position remained that in England & Wales in 1987, or basically, the law in this area has been at a standstill for 30 years. 

36.Having said this, there were attempts made. After the 1991 Report, the Commission appointed a sub-committee in 1995 “to consider the law relating to guardianship and custody of children, and to recommend such changes as may be thought appropriate”, and after some 10 years, the Report on Child Custody and Access was finally issued in March 2005 (“2005 Report”).

37.Mr Coleman SC and Ms Wong had referred to the major problems with the current law identified in the 2005 Report[13].  Further it was stated in paragraph 1.3 of the 2005 Report, that in other common law jurisdictions, there has been a shift away from the legal emphasis on the rights and authority of each of the parents over their children, towards a more child-focused concept of “joint parent responsibility”, and that this newer approach was examined in the 2005 Report. Following research and public consultation, the 2005 Report recommended a paradigm shift from the current concept of “custody” to “parental responsibility”.

38.In particular, the Commission in its Recommendation 9 of the 2005 Report recommended that the language of s3 (1)(c)(ii) and (d) of GMO which relates to the “rights of authority” of an unmarried father, should be changed to reflect the new language of responsibilities rather than rights, and further in Recommendation 10, the Commission recommended that an unmarried father should be capable of acquiring parental responsibilities and rights by signing the birth register, and that the proposed legislation should include this in a list of the ways in which parental responsibility can be acquired by the unmarried father, although the Commission does not recommend automatic acquisition of parental responsibility or rights of unmarried fathers (emphasis added). 

39.Fast-forwarding from the 2005 Report, eventually after another 10 years, on 25 November 2015, the Labour and Welfare Bureau issued a Consultation Paper on the proposed Children Proceedings (Parental Responsibility) Bill (“Proposed Bill”).

40.In particular, clause 6 under Part 2 of the Proposed Bill sets out as follows :

“6. Acquisition of parental responsibility by father

(1) If a child’s father and mother were not married to each other at the time of the child’s birth, the father acquires parental responsibility for the child when—

(a) he is married to the mother of the child after the child’s birth;

(b) he becomes registered as the father of the child under section 12 of the Births and Deaths Registration Ordinance (Cap 174);

(c) he makes an agreement with the mother of the child providing for him to have parental responsibility for the child (parental responsibility agreement);

(d) he assumes guardianship over the child as a guardian appointed under Part 3; or

(e) the court makes an order under subsection (2) that the father has parental responsibility for the child.

(2) On an application by a person, the court may, if satisfied that the person is the father of a child, order that the person has parental responsibility for the child.

(3) For the purposes of this Ordinance, a parental responsibility agreement does not have effect unless—

(a) it is made in the prescribed form; and

(b) it is recorded in the prescribed manner.

(4)   For the purposes of this Ordinance, if a child’s father has acquired parental responsibility for his child under subsection (1) and has not ceased to have it as provided in section 7(1), he is treated as a surviving parent of the child on the death of the child’s mother.”

41.The above clause 6 in the Proposed Bill will introduce some provisions of the current version of s4 (1) of the Children Act 1989, after the 2003 amendments.  Although the Proposed Bill has not yet been laid before the Legislative Council, the shift towards the focus from parents’ rights and authorities to parental responsibility and rights of the child is likely to take place in not too distant future, and the ways in which an unmarried father can acquire the parental responsibilities and rights in relation to his child will be further streamlined and spelt out clearly.

42.In so far as case law is concerned, Jeremy Poon J, as he then was, in H v N (Children: variation of interim order) [2012] 5 HKLRD 498, had referred to the “Equality principle”, namely in approaching s3 (1) of GMO, subject to the position under illegitimacy, the court will always put the competing parents on an equal footing and any role or gender discrimination is not permissible[14] (“Equality Principle”).  In this, he had quoted what was said by Hartmann JA, as he then was in PD v KWW (Child: Joint Custody) [2010] 4 HKLRD 191, in particular the following:

“It is widely recognized today that the long-term best interests of a child are invariably best protected if, despite the breakdown of the marital union, both parents are able to continue to play an equal role in making the important decisions that will determine the child’s upbringing[15].”

43.Poon J then went on to explain that in the case of illegitimacy, the position is a little different, and at common law, an illegitimate child was regarded as a filius nullius, a child of nobody.  He had no legal relationship with the mother or father, and common law had developed to allow the mother to claim custody of her illegitimate child.  However, Poon J recognized that it remains the case that the unmarried father has no legal parental rights over his illegitimate child, but pointed out that although the common law disparity in parental rights in cases of illegitimacy still lingers, it can be redressed by the court under s3 (1)(d).  He further said whether and how the court will do so must depend on the actual circumstances of the case, but surely the court will firmly bear in mind the Equality Principle when dealing with a father’s application[16]. (emphasis added)

Parental rights

44.As the law currently stands, there is no definition to “rights and authority” or parental rights under s3(1)(d) of GMO. 

45.In the 1991 Report, the Commission had already recognized the difficulty of defining what was meant by “parental rights”.  The Commission had referred to section 8 of the Law Reform (Parent and Child) (Scotland) Act 1986 which defined “parent rights” as

“tutory, curator, custody or access, as the case may require, and any right or authority relating to the welfare of upbringing of a child conferred on a parent by any rule of law[17].”

46.The Commission had also referred to a suggestion of Mr Pegg, namely that:

“The rights and powers exercisable over a child included [at common law] the right to physical care and control, the rights to the services of the child, the right of chastisement, the right to determine the form of religious and secular education, the right to control the child’s property, and the right to appoint a testamentary guardian, although the list is far from being exhaustive[18].”

47.Paragraph 2.10 of the 2005 Report has set out a list of “rights and authority” of parents as used in GMO, as found at common law and in statute and they include the following[19]:

(i) the right to live with the child and control the child’s day-to-day upbringing;

(ii) the right to the physical “possession” and “services” of the child;

(iii) the right to choose the child’s education;

(iv) the right to choose the child's religion;

(v) the right to choose the child’s surname;

(vi) the right to inflict moderate punishment on the child;

(vii) the right to consent to medical treatment for the child;

(viii) certain rights to enter into contracts on the child’s behalf;

(ix) the right to act for the child in legal proceedings;

(x) the right to administer the child's property;

(xi) the right to appoint a testamentary guardian for the child;

(xii) the right to consent to an application for a passport for the child;

(xiii) the right to arrange for the child to leave or emigrate from the jurisdiction;

(xiv) the right to consent to the child’s marriage;

(xv) the right to consent to the child’s adoption.

48.The above list is by no means exhaustive. In the 2005 Report, what the Commission in the end recommended was a draft section on the definition of parental rights based on the then section 2 of the Children (Scotland) Act 1995.  This has now found its way into clause 5 of the Proposed Bill.

49.Clause 5 under Part 2 of the Proposed Bill defines “parental responsibility” to mean the responsibilities specified in subsection (2)   thereunder and the rights specified in subsection (3) thereunder.  Subsection (3) states :

“(3) The rights are the rights of a parent—

(a) to have the child living with the parent or otherwise regulate the child’s residence;

(b) to control, direct or guide the child’s upbringing in a manner appropriate to the stage of development of the child;

(c) if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and

(d) to act as the child’s legal representative.”

50.With all the above in mind, I now turn to consider the present case.

Brief Background of the present case

51.The background of the present case and the hisbory of the  parties’ dispute has been set out in the numerous previous judgments of the Family Court and/or the Court of Appeal. 

52.Briefly,

(i) The parties met in 2005 and thereafter they started a relationship and they started cohabitation in about 2007.  They were never legally married, although there was a Chinese marriage ceremony in June 2008.

(ii) The Child was born in November 2008.  She will be 9 years old soon.  

(iii) On 10 May 2009, the Mother left home together with the Child who was then 6 months old, apparently over an argument over milk power.

(iv) In March 2010, the Father commenced FCMP 67/2010 seeking custody, care and control of the Child.

(v) Interim ataying access was granted to the Father in October 2010. 

(vi) After a 16 day trial before Deputy Judge George Own, as he then was (“Family Judge”), he handed down a judgment on 5 October 2012 (“05.10.12 Judgment”).  The Mother was granted sole custody, care and control of the Child and the Father was to have general access, with the details to be determined at a further hearing, and in the interim, the then access arrangements were to continue (“Custody Order”).

(vii) The Father had tried to appeal, but without success.

(viii) According to the Father, since May 2013, the Father’s access to the Child has been either cut off, reduced or distorted as a result of the Mother’s repeated unfounded allegations of abuse. 

(ix) The Father said, notwithstanding the Mother’s 1^st allegation of abuse, the Father was subsequently granted access under an order dated 13 March 2014, to roughly half a week as follows: (a) one week from Wednesday (from after school or 9:30 am if no school) to Saturday at 9:30 pm; and (b) the second week from Thursday (from after school or 9:30 am if no school) to Sunday at 10:00 am (the “13.03.14 Access Order”).

(x) After the Mother’s 2^nd allegation of abuse, there was a temporary interruption of access on 4 June 2015, although eventually the 13.03.14 Access Order was restored.

(xi) The Mother’s 3^rd abuse allegation was made in October 2015 and the Mother then applied to vary access on that ground.  The 13.03.14 Access Order appeared to be suspended again and then replaced by (1) first a supervised access order, then (2) by a conditional access order on 31 March 2016, of one day a week, on Saturday from 10 am to 9 pm, conditional on the Father’s compliance with certain undertakings (“31.03.16 Access Order”). The Father made an application to resume access pursuant to the 13.03.14 Access Order.

(xii) The parties’ respective applications ended in another trial in July 2016 with a decision handed down by the Family Judge on 30 September 2016 dismissing both applications, but ordering that unless the Father was to proceed with the general access arrangement per the Custody Order, he would only be entitled to reasonable access (“30.09.16 Decision”).  Suffice to say, the Father is now seeking leave from the Court of Appeal to appeal against the 30.09.16 Decision.

53.In the course of the above various applications in relation to custody and access of the Child, the Mother has also taken out applications for financial provision for the Child.

54.Anyway, notwithstanding all the applications, the Father has not been to have any contact with the Child since January 2017.  The Father then decided to issue the present wardship proceedings on 20 April 2017, since when the Child has been a ward of this court.

55.At the first hearing of these proceedings, on 19 May 2017, this Court granted the Father “interim defined access along the same undertakings and terms of the Order dated 31 March 2016 made in FCMP 67/2010 until further order” (“19.05.17 Access Order”).  The Mother was present at the hearing, although legally unrepresented at the time, but she expressed no objection to the 19.05.17 Access Order,

56.Notwithstanding the interim access order, the Father has not been able to exercise access, and there are now further applications before this Court.  The Mother’s case is that it is the Child who resists contact with the Father.

The Mother’s grounds of opposition to the present application

57.In his 1^st submissions, Mr Li submitted that, the court retains a discretion under s3 (1)(d) of GMO as to whether to make the order sought, and if so, whether the Father shall have “all” or just “some” of the Rights. He referred to the Court of Appeal’s decision upon refusing the Father’s leave to appeal against the Custody Order, namely CCMJ v SSM, [2013] 3 HKLRD 497, HCMP 178/2013, where the Court of Appeal has said:

“18. The learned judge made the order after expressly considering the principles in Y v P and PD v KWW. Those principles include the court’s recognition that if in a particular case it is clear that joint custody was unworkable, a joint custody order should not be made solely for the purpose of encouraging the parties to overcome their differences or to recognize the continuing role of the parties (Y v P, para 21).  The court would not make a joint custody order as a matter of “wishful thinking”; it must consider the “practical reality” of the situation (para 24).  The court has recognized that “there may be occasions when the ability of the parents to reach any sensible accord in respect of important matters concerning the upbringing of their child is so deeply undermined that to compel attempts at co-operation will not protect the interests of the child but only leave the child more vulnerable” (PD v KWW para 57).

19. In the present case there was ample evidence for the judge to take the view that the father’s overbearing attitude demonstrated in the past 2 years makes cooperation simply “wishful thinking”.  In Rogers VP’s words in Y v P, the father here was determined to “micromanage every aspect and every minutiae of a child’s life”.  This makes a joint custody order impossible.  The statements in the preceding paragraph support the learned judge’s decision not to make a joint custody order.  It cannot be said that the judge had made an error in law or had failed to take any relevant matters into account or that his decision was “plainly wrong”.

58.Further, Mr Li submitted that the Father’s desire to obtain the Rights will only create more disturbance and chaos to the Child, especially when it is unclear as to why the Father would wish to ask for such an order and what he wants to do with such an order in the practical terms.

59.In his 2^nd submissions, Mr Li referred to the two cases H v N and PD and KWW cited earlier and what was stated/quoted by this court earlier.  Mr Li submitted that a sole custodian parent has the final decisions on the major matters concerning the upbringing and day to day activities of a child and the non-custodian parent does not have the right to decide on those matters nor the right to veto; however, the non-custodian parent still retains the right to be consulted and to have his/her views considered and this hierarchy serves to prioritise the decision making process so that the custodian parent can made the final decision without the need of coming to court for every disagreement between the parents.

60.What Mr Li submitted is correct in relation to the differences between sole custody and joint custody, as explained by Hartmann JA in PD v KWW,but the present application is not in relation to custody, but to the Rights.

61.In any event, in the case of a mother who is the sole custodian of a child born within wedlock, and who will be able to make the final decision on the upbringing and day to day activities of the child, the non-custodian father of a child born within wedlock will still have the right to be consulted, and if necessary, the parent can make an application to the court to prevent the custodian parent in carrying out any decisions which the non-custodian parent may consider unreasonable.  Further, even a sole custodian mother of a child born within wedlock will still need to make an application to the court for leave to permanently remove the child out of jurisdiction of the court and the father does have a right to veto in such an application.

62.Without over-simplying it, when the parents of a child born within wedlock are unable to agree on a matter relating to the upbringing of the child, the burden of making an application to the court will be on the non-custodian parent.  Thus, even in a high conflict case between parents of a child born within wedlock, the need of coming to court for every disagreement between them may not necessarily be reduced by one parent being granted sole custody.

63.As Mr Coleman and Ms Wong pointed out in their submissions, Mr Li’s submissions on behalf of the Mother in fact highlight the Mother’s attitude and approach towards the present application, and as described by the Father’s Counsel, it is an “wholly inapt approach which centres on exclusion of the Father in all respects”.

64.The Father has already complained that the Mother had been keeping him in the dark in respect of the Child’s upbringing[20] and had further been very hostile and uncooperative when the Father asked her about the schooling matters of the Child and in particular she had kept him in the dark about the Child being required to repeat Primary 1 in the summer of 2015.

65.In any event, a custody, care and control, or access order, even if said to be “final”, this does not necessarily mean that an order expressed as such will bring finality to the matter, since in relation to a child, a parent can make an application for variation, where there is a material change of circumstances.  The Father has in the present proceedings again applied for custody, care and control of the Child, and if he is not granted the Rights, it may be argued that he is not even entitled to make such an application, or indeed any application for access. 

66.To be fair to the Mother, she has not sought to argue this whether in these proceedings, or so far as I am aware, or in the proceedings in the Family Court.  In fact, the fact that Mother has not sought to put forward such arguments is also in my view indicative of the fact that the Mother has never really challenged that the Father possesses parental rights and authority, until now.

67.Mr Li referred to the protracted litigation between the parties and the Father’s litigation conduct which, as observed by the Family Judge posed a genuine concern not only with the Mother but also with the Family Judge, and that the Court of Appeal lately also saw fit to order indemnity costs against the Father in dismissing his application for leave to appeal against the Financial Order, as defined below.

68.Mr Li referred to the 05.10.12 Judgment and emphasized   what was said by the Family Judge therein, namely that the Father was challenging the Mother on virtually all aspects over the child care given to the Child as he possibly could.

69.Mr Li also referred to the various social welfare reports and psychologist’s reports relied on by the Family Judge in the 05.10.12 Judgment and had submitted that the Father’s tendency to challenge the Mother and the court orders did not stop, and that he continued to be as obstructive as possible in respect of the Child’s financial provisions and access issues. 

70.The Family Judge made an order for financial provision and a settlement order of a property known as One Silver Sea Property (“Property”) on 5 June 2015 (“Financial Order”) which, as mentioned earlier, the Father had sought leave to appeal, and which was dismissed by the Court of Appeal with indemnity costs and this was on 7 December 2015.  Apparently, the Father failed to comply with the settlement part of the Financial Order and the Mother had to seek a possession order, and eventually on 3 March 2017, the Father was ordered to deliver vacant possession of the Property.  Apparently, recently, in April 2017, the Mother then made a further application, seeking renovation costs of the Property.

71.Since the Custody Order, the Father had already made one application for variation before the Family Judge, apart from his leave applications to appeal, and these proceedings.

72.So far as access is concerned, as mentioned earlier, by now, the Father has not been able to have access to the Child for more than 9 months and so far, the 19.05.17 Access Order has not been complied with by the Mother.

73.Mr Li complained of the Father’s litigation conduct.  I can only say at this preliminary stage, it takes two to litigate, and there seems to be serious hostility between the parties. 

74.Mr Li submitted that given the Father’s determination to micromanage every aspect and every minutiae of the Child’s life, his desire to obtain the Rights will only create more disturbance and chaos to the Child, especially when it is unclear as to why the Father would wish to ask for such rights.

75.Even if it may appear that the Father was over controlling or micromanaging, this is not a sufficient reason for him to be excluded from the Child’s life or have no parental rights.

76.Anyway, in my view, the Mother’s objections are misconceived.  The fact is that the Mother has been granted sole custody, care and control, and this means the Mother continues to have the right to make the final decision on matters relating to the upbringing of the Child, and whether the Father is granted the Rights or not, this will not affect the Mother’s sole custodian rights.  Further, as Mr Li has submitted that the Father has the right to be consulted, this seems to this court to be a concession by the Mother that the Father does have rights, since the right to be consulted is part of the Rights.

The 3 Factors in Re H

The 1^st Factor : Degree of commitment

77.It is the Father’s case that all along he has been loving and caring towards the Child and has been fulfilling his duties as a father and had been actively involved in every aspect of the Child’s living, prior to his access completely being blocked off by the Mother since the last access on 21 January 2017.  The Father had staying access since the Child was less than 2 years old, and recognizing the positive role the Father played in the Child’s growing up, his access had steadily increased since 2010, to roughly half a week under the 13.04.14 Access Order and such access was suspended respectively followed the Mother’s 2^nd abuse allegation on 30 May 2015 and her 3^rd abuse allegation on 24 October 2015.  Both allegations were found to be unsubstantiated by Multi-disciplinary case conference/MDCC and in fact the Father was found to be a loving and concerned father.

78.The Father’s case is that he has also been paying for the Child’s financial provision both prior to and after the Financial Order.  The Financial Order provides that he has to pay maintenance for the Child of HK$13,726 per month and carer’s allowance of HK$10,000 per month, plus undertaking to pay other expenses of the Child including all extra-curricular activities expenses not exceeding HK$10,000 per month.

79.It is further the Father’s case that all of the Child’s schooling from playgroup to her current primary school was arranged through his efforts. In terms of health, the Child’s health issues were addressed and attended by the Father promptly and prudently.

80.I note in the Social Welfare Report dated 17 July 2012, the social welfare officer Ms Ma has observed, that “事實上，陳先生對女兒的各種需要均無微不至，在生活及學習上亦提供經濟支持，盡力為女兒作好榜樣。”[21].

2^nd Factor: Attachment between the Father and the Child

81.The Father’s case is that the Child has been very close to him throughout the years as observed by many professionals, among others, and as evidenced by various photos of the Child smiling.

82.The Child can be seen smiling broadly in seeing the Father on 3 September 2014 when he picked her up from school and when the Mother was not present[22].

83.In the Social Welfare Report dated 18 June 2014, the social welfare officer Miss Kiu observed, “Dr Bill TSANG, Counselling Psychologist of Human Empowerment and Achievement Training, Caritas Family Services, was contacted over phone.  Dr TSANG observed that [the Child] had positive emotional response to her father who was supportive and resourceful to the girl’s cognitive and health development.”[23].

84.The Child told the social welfare officer Miss Kiu when they were alone that “she was very afraid of being scolded by her mother who always scolded her.  When asked to give the details, [the Child] at first replied that she had forgotten them.  She then mentioned that her mother once scolded her for lying when she said that she would like to go to her father’s home.  The girl added that she was telling the truth and she did want to live with her father.  [The Child] said that when she did something wrong, her father would reason with her and that he had never scolded her.”[24].

85.Mr Coleman submitted that the Child’s close attachment to the Father can also be seen from what she told the specialist in psychiatry Dr Gabriel Hung when they two met alone[25]:

(a) “[The Child] said she dares not to tell her mother that she loves her father, because her mother gets mad and punished her.”;

(b) “One time, she told her mother she loves her father.  Her mother scolded and punished her by forcing her to hold her ears and stand outside the main door of her mother’s home.  She was forced to stand there alone for a long time and she was very scared in the quiet corridor.”;

(c) “[The Child] said that she loves both her mother and father.  She said that her father never asked her who she loved more.  She said that her father told her to Love both her mother and father.”;

(d) “On one occasion, [the Child] told her mother that she missed her father.  Her mother got mad at her and did not allow her to go to dance class as a way to punish her and did not allow her to listen to her father’s phone calls.”; and

(e) “[The Child] said she is excited when she can go back to her father’s home.  However, she needs to hide the excitement from her mother or else her mother would get mad at her.”

86.Mr Coleman also referred to consistent observations  mentioned by the government clinical psychologist Miss Irene Cheung in her report done for the MDCC[26].

87.The Child is also said to be very close to the Father’s parents. The Child has also been close to the Father’s other family members. During each of the Saturday access periods since 2 April 2016, the Child was very relaxed and playful, and getting along very well with the Father, her cousins, her aunts, her uncles and nephews.  In addition to playing, the Father and the Child also had a good time in doing revision or practice for various subjects.  There was no objective evidence to contradict what was alleged by the Father.

3^rd Factor: Reasons for the Father’s application

88.The Father alleges that the Mother has been abusing her parental rights to the detriment of the Child.  The Child has been deprived, is being deprived, of having the Father properly participating in her upbringing.  

89.The Father also complains that the Mother did not even tell him about the status of the Child in seeing the clinical psychologist Mr Lam from the Social Welfare Department, nor the Child’s performance at school.  In particular, the Father complains:

(a) Education: As mentioned earlier, the Mother did not inform the Father the Child was required to repeat Primary 1. 

(b) Medical: The Mother complained through her lawyers that the Father should not be taking the Child to seek medical treatment during his access without her consent.

(c) Choice of school: The Mother instructed her solicitors to write to say unless the Father would withdraw his custody variation application the Child could not take part in the 41 School Net Primary One Allotment (POA). Although the Father helped the Child to be accepted by many private schools, the Mother never allowed the Father to take part in deciding the school for the Child. 

(d) Religion: The Mother baptised the Child without even informing the Father.

90.The Father further complains that the Mother has been alienating the Child from the Father as well as keeping the Father in dark in respect of the Child’s upbringing, thus creating more conflict between the parties.

Other considerations

91.There is no doubt that this is a high conflict case, and that unless the parties’ hostility towards each other is to be reduced, there will be continuing litigation between the parties.  The Child is now said by the Mother to be reluctant or unwilling to see the Father, after allegedly being scolded by the Father.  However, as seen earlier, the Father had had regular access to the Child.  Even though there was an issue over the delivery of the Property, there was no sufficient evidence to contradict what the Father has said, namely that all along he has been paying maintenance for the Child.

92.In any event, as submitted by the Father’s Counsel, the Mother has introduced no objective evidence to refute the various evidence of the Father showing (i) his strong commitment towards the Child, (ii) the strong attachment existed between the Father and the Child and (iii) the Mother has been abusing her parental rights.

93.Having considered the present evidence before the Court, I am of the view that the Father has satisfied this court of the 3 Factors in Re H. In my view, the Father has shown ample attachment and commitment to the Child, and as said by Balcombe LJ in Re E, an order for him to have all the Rights would be prima facie for the welfare of the Child, (or for her interest) and the Mother has to come up with cogent evidence that the Child’s welfare would be adversely affected by the making of such an order.  In my view, the Mother has not been able to come up with such evidence. 

94.Section 12 of the Births and Deaths Registration Ordinance, Cap 174, provides for the registration of father of illegitimate child as follows:

“(1) Notwithstanding sections 7 to 10, in the case of an illegitimate child—

(a) no person shall, as father of the child, be required to give information concerning the birth of the child; and

(b) there shall not be registered in the register the name of any person as father of the child, except in the circumstances provided in subsection (2).

(2) The circumstances referred to in subsection (1)(b) are —

(a) at the joint request of the mother and the person stating himself to be the father of the child; or

(b) at the request of the mother on production of —

(i) a declaration made by the mother stating that that person is the father of the child; and

(ii) a statutory declaration made by that person stating himself to be the father of the child; or

(c) at the request of that person on production of —

(i) a declaration by that person stating himself to be the father of the child; and

(ii) a statutory declaration made by the mother stating that that person is the father of the child; or

(d) at the request of the mother or that person on production of —

(i) a certified copy of a relevant order; and

(ii) if the child has attained the age of 16 years, the written consent of the child to the registration of that person as his father.

(3) In this section and in section 12A, “relevant order” (有關命令), in relation to a request under subsection (2)(d) that the name of any person be entered in the register as father of a child, means any of the following orders, namely —

(a) a declaration of a court under Part IV of the Parent and Child Ordinance (Cap 429) that the person is or was the father of the child;

(b) an order of a court under the Guardianship of Minors Ordinance (Cap 13) —

(i) under section 3(1)(d) granting that person any right or authority in relation to the child;

(ii) under section 10(1) granting that person custody of or access to the child; or

(iii)  under section 10(2) requiring that person to make any lump sum or periodical payment in respect of the minor. (Amended 32 of 2000 s14) (c) (Repealed 32 of 2000 s14) …”

95.The Father is stated to be the informant of the Child’s birth on the Child’s birth certificate and he signed as father of the Child thereby acknowledging he is the father of the Child.  This alone would have entitled him to acquire all the Rights under the Proposed Bill if it comes into effect. In any event, there is no challenge to the Father being the father of the Child under s3(1)(d) of GMO, and I am so satisfied.

96.Notwithstanding submitting that this court has no discretion to grant the Father only some of the Rights, the Mother has not actually come up with what of the Rights should not be granted.  Nor have any authorities be shown to this court where only some of the Rights have been granted.  The Child clearly has a close relationship with the Father until the incident in January 2017.  She is fully aware that the Father is her father, and in my view and bearing in mind the Equality Principle, to have a father with some rights and not other rights, and a mother with all the rights, will cause even more confusion and chaos in the Child’s life and cannot be said to be in the best interests or the welfare of the Child.  There was no cogent evidence from the Mother that the Child’s interests or welfare would be adversely affected by an order granting the Father all the Rights.

97.Having considered all the above and all the circumstances of this case, I am of the view that it is in the Child’s best interests for the Father to be granted all the Rights under s3 (1)(d) of GMO. 

98.It was held in Re P (Child: Parental Responsibility Order) [1993] 2 FCR 689 that an order for parental responsibility under s4(1)(a) of the Children Act 1989 gave the unmarried father no power to override the decision of the mother, and that it was important to be clear that an order for parental responsibility to the father did not give him a right to interfere in matters within the day-to day management of the child’s life[27].

99.In the present case, similarly, and as I have said earlier, giving the Father all the Rights under s3 (1)(d) of GMO would not give him any power to override the decision of the Mother who holds sole custodian rights, and that he will only have a right to be consulted on matters of consequence that relates to the Child’s upbringing, plus all others of the Rights.

Order

100.I order that the Father shall have all of the rights and authority that the law would allow him as father if the Child were legitimate.

101.As for costs in children cases, there is generally no order as to costs unless one party has been unreasonable in the litigation.  In my view, the Mother has opposed this application unreasonably.  She regarded the application as a custody application and was contradictory as she conceded that the Father does have a right to be consulted over major matters concerning the Child.  She was unable to say what rights the Father should not have.  The Father obviously does not fall into that category of fathers who had played no part in the Child’s life.  Having considered her grounds of opposition, in my view, the Mother should bear the costs of this application.  I am aware that the Mother is under legal aid, but that does not entitle her to oppose an application unreasonably.  I therefore order that the Father’s costs of this application be paid by the Mother, to be taxed and paid forthwith. The Mother’s own costs be taxed under legal aid regulations.  This is an order nisi, to be made absolute after 21 days.

Mr Russell Coleman SC and Ms Athena Wong, instructed by Chan & Chan, for the plaintiff

Mr Kevin Li, instructed by Stevenson Wong & Co, for the defendant