Wgl v. Asb

CAMP 96/2018

[2018] HKCA 550

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 96 OF 2018

(ON AN INTENDED APPEAL FROM FCMP NO. 234 OF 2012)

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REASONS FOR DECISION

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Hon Cheung JA (giving the Reasons for Decision of the Court) :

I. Background

1.1This case is about the choice of school of a young girl which, by reason of the disagreement of her parents, has to be resolved by the Court.  The girl is the daughter of an unmarried couple.  They were initially engaged but their relationship ended before the child was born.  Joint custody of the child was given to both parents together with the requirement that the respondent Mother will consult the applicant Father and make joint decisions with the Father on all major issues affecting the child including but not limited to the child’s education. The Mother has care and control of the child and has been the primary carer of the child since the child’s birth.  As recorded in the judgment below, the Father has had no form of contact with the child since October/November 2017. 

1.2The child was born on 31 August 2007.  She will be eleven at the end of this month.   She attended the Peak School which is an English Schools Foundations (‘ESF’) primary school, teaching the International Baccalaureate (‘IB’) programme. She spent her whole primary school at Peak School and has recently completed her sixth grade.  The Mother has enrolled her at a private school, Harrow, in Hong Kong which does not teach the IB programme but the English GCSE/A Level programme.  She was accepted by Harrow to be a sixth grade student.  The Mother applied to Court to allow the child to attend Harrow as a sixth grade student. The Father, however, objected to the child being required to repeat her sixth grade. The Father said that as the child is also accepted by another secondary school, namely Island School (which is also an ESF school teaching the IB programme) to be a grade 7 student, therefore the child should go to Island School instead. As a matter of fact, the child was accepted by another private school, namely Kellett to be a seventh grade student.  As the Father had refused to pay for the deposit required for the enrollment into Kellett School, it is no longer an option for the child.

1.3As a result of the disagreement of the parents, the matter was brought before H H Judge Melloy who decided that the interests of the child are best served by having her enrolled at Harrow.

II.  Leave to appeal

2.The Father seeks leave to appeal against the Judge’s decision.  In view of the urgency of the matter since the new term in Harrow would commence soon, it was ordered that the hearing for the application for leave to appeal was to be a ‘rolled up’ hearing, namely if leave to appeal was granted, the substantive appeal would take place forthwith at the same hearing.  We refused to grant leave at the conclusion of the hearing and we now give reasons for our decision.

III.  The parties’ case

1)   The Mother’s view

3.1The Mother is of the view that the child is the youngest and smallest child in her grade at Peak School, and her performance is somewhere between average and slightly above average.  Harrow will provide her with an opportunity to attend a more structured and rigorous private school.   Further, the child is excited that she is accepted by Harrow.  The Mother also relies on an English educational assessment provided by a Ms Robinson who is of the view that it is necessary for the child to repeat the sixth grade.  Her report was produced by the Official Solicitor who had carried out an investigation on the choice of school issue and recommended the child to attend grade 7 at Island School. Ms Robinson stated in her report dated 8 May 2018 that :

‘ This recommendation, purely based on an English assessment, does not take into consideration her abilities in other subjects across the school curriculum. As far as English is concerned, however, I believe [the child] is not prepared or equipped to cope with the demands of the Key Stage 3 English coursework. As English is of paramount importance, playing an integral part in most other subjects (including Science and the humanities), I would still recommend repeating Year 6.’

2)   The Father’s view

3.2The Father relies on the view of the Official Solicitor that it would be preferable for the child to proceed to grade 7 and if it is considered necessary to improve the child’s English skills in view of Ms Robinson’s assessment, an intensive English course may be arranged as recommended by her.

3.3The Father was of the view that the child studying grade 7 following the IB programme is the best course of action.  She has been at this programme since the first grade and progressed wonderfully.  The Father was of the view that no normal parents can look at the child’s report andsay she has to repeat a grade.  The Father said it is important for her to keep up with the continuity in her progression.  The Mother was not even able to present a simple report card to show that the child has failed thus in his view, holding her back is a damaging solution for which there is no demonstrable solution.

3)   The Official Solicitor’s report

3.4The Official Solicitor stated, amongst other things, that :

‘ 36. Although Ms. Robinson evaluated that [the child’s] English ability was in the level of Year 5/Year 6 only, Ms. Robinson has yet assessed [the child’s] English comprehension skills. Anyhow, it is inappropriate to make judgment on the appropriate school Year for [the child] based on an English Assessment only; as other areas and subjects were not considered as a whole to give a full picture of her academic performance and eligibility.

37.   Conversely, it is revealed from [the child]’s Report of Achievement of 2017/2018 provided by Peak that she has done well (i.e. either “Meets Expectations” or “Exceeds Expectations”) in her English subjects.  Kellett also considered [the child] has showed strong performance in writing.  Hence, there is no academic assessment suggesting that [the child’s] English skills are below standard.’

IV.  The Judge’s decision

4.The Judge gave the following reasons for her decision that the child should join Harrow at grade 6.

‘ 17. It is then against this background that I am asked to make a determination about whether or not [the child] should go to Island School and be enrolled in year 7 or alternatively whether she should join Harrow and enter year 6. Having considered all of the competing factors, and notwithstanding the recommendations made by the Official Solicitor, it seems to me that it would be more appropriate for [the child] to be enrolled at Harrow and to repeat year 6. I do so for the following reasons:

a)   Although Island School is considered to be a good ESF school, there is no doubt that in comparison, Harrow is regarded as a top tier English public school with an outstanding reputation in all areas.

b)   On a close review of [the child’s] most recent school report for year 6, it seems that [the child] is only meeting expectations for most of her subjects and she is till consolidating in some parts of Chinese and Math.  She only exceeded expectation in one area of Math and in a unit entitled “How we organise ourselves”.  She met expectations only in all areas of English.  I accept therefore the mother’s analysis of the situation namely that [the child’s] academic performance is probably between average and slightly above average.

c)   I beg to differ from the Official Solicitor when she suggested that the court should not attach too much weight to Ms Robinson’s English assessment.  It seems to me that given that this is the only other assessment that we have of [the child’s] current academic standing, save for her entrance exam at Kellett, that what Ms Robinson has said here is a matter of some considerable concern, although it is accepted that she has only assessed [the child’s] current English skills.  I agree that [the child] may do better if she is permitted to repeat Year 6 for all of the reasons given by Ms Robinson in paragraph 11 above.

d)   Both schools will require [the child] to travel. Island School is presently located in Shatin and Harrow is in Tuen Mun.  Thus neither one is to be preferred against the other in that respect. But Island School is currently occupying a make shift campus, pending the redevelopment of its Borrett Road site, whereas Harrow occupies a state of the art school campus. It seems to me that it must logically follow that a state of the art campus is currently preferable to a makeshift one.  To that end it is of note that the father had chosen not to visit either schools.

e)   In addition, [the child] is currently one of the youngest in her year group as her birthday falls on the 31 August, which is the cut-off date for the school year. I accept that this could have a negative impact on her and that she is likely to benefit from repeating year 6 in a different school.  I do not consider that there should be any stigma attached to this, given the circumstances. It is of note that [the child] wishes to attend this school. Although the Official Solicitor has some concerns in this respect, it seems to me that some weight should be attached to [the child’s] stated views i.e. her wish to go to Harrow.

f)   Further and although I was not addressed on this during the hearing, it is also of note that there is a school psychologist on staff at Harrow.  Consequently, it seems likely that [the child] will have access to strong psychological support, if that becomes necessary.  She does not appear to be receiving any therapy at present despite the court’s previous order/direction in that respect.’

V.  Ms Yip’s arguments

5.1Ms Yip SC for the Father submitted that the starting point must be that in the normal and usual course of events the child should stay within the same school system and should progress on to the next grade.  Naturally, each case depends upon its own facts ‑ and the question is whether there was cogent evidential basis pointing away from the normal and usual course being in the child’s welfare and best interests.  Ms Yip submitted that the effect of the Judge’s order involves :

1)   taking the child away from the status quo ESF/IB system (which the child has been studying under during her entire primary school life at Peak School);

2)   holding the child back a year by repeating the sixth grade (the last year of primary school) all over again (rather than progressing on to seventh grade secondary school); and

3)   switching to a brand new curriculum/school system. 

5.2She submitted that the Judge should not have so ordered unless there was cogent and admissible evidence (which there was not) that the welfare and best interests of the child require that she change away from the ESF/IB system and repeat the sixth grade.

5.3Ms Yip submitted that such evidence is lacking because the child was an average or slightly above average sixth grade student and prima facie is a normal and usual candidate for progressing on to secondary school (seventh grade) rather than being held back to repeat the last primary school year instead.  Ms Yip further submitted that the Official Solicitor had obtained information from Kellett which showed the Mother had applied for the child to enter the sixth grade :

‘ Kellett used UK National Standard Attainment Assessment in English and Mathematics – and after assessment the Child’s results were placed before Kellett’s Admissions Panel to determine whether she should be placed in sixth Grade (which the Mother had applied for) or seventh Grade (as would be the normal and usual progression).’

5.4Ms Yip submitted that Kellett would not offer the child a place if it was not comfortable with the student’s assessment.  Kellett confirmed that it comfortably offered the child a place for year 7 without requiring any additional support to be arranged by the parents. 

5.5Ms Yip submitted that Ms Robinson was not an expert.  Her report purported to give expert opinion evidence and the Father had no opportunity to consult his own expert or file expert reports or cross‑examine and challenge Ms Robinson’s purported expert evidence. Further, the report was partial and incomplete as it only assessed English and no other subjects.  Even for that it was not complete as an English assessment as the child was not even assessed for English comprehension; taken at its highest, the report suggested that the child may need intensive English tuition when she changes over from ESF/IB to Harrow’s UK system. 

VI.  Our view

6.1The Court is dealing with the exercise of a discretionary power of the Judge.  As repeatedly stated, on an appeal from an exercise of discretion, the Court of Appeal will interfere and exercise the discretion afresh only if it is shown that the discretion was wrongly exercised in the first place, for example, the discretion was exercised on wrong principles or irrelevant considerations had been taken into account or relevant considerations had been ignored.  Recent authorities have stated that the Court of Appeal will only intervene when the decision below was plainly wrong.  This is another way of saying that the discretion had been wrongly exercised.

6.2To start with, it is only commonsense that if a child is not struggling with her studies then one would expect her to progress naturally to her next grade.  However, that is not a situation cast in stone.  There may well be situations where, even if the child is not struggling academically, it still may be in her interest for her to repeat one year before she moves on to the next grade.  This situation does not need to be exceptional.  It is also not necessary to adopt a threshold test by reference to terms like justification.  Because ultimately the only guiding principle regarding children is whether the decision is in their best interests.  

6.3There is no question that Harrow is well‑known and has been regarded as a top tier English public school (meaning fee-paying private school).  It has an outstanding reputation both academically and in other areas.  It has a more structured teaching approach.  Hong Kong Harrow is of course newly established but the evidence shows that its students achieved high grades in public examinations and have been highly successful in gaining places at top universities.  Hence the Mother is not doing something so extraordinary for the child that extra scrutiny is required to see if the change is justified.  The Judge considered that it is, indeed, in the best interests of the child for her to attend Harrow at grade 6.  The child who was born on 31 August will be amongst the youngest in her class.  In an academically competitive community like Hong Kong, there are plenty of examples that the age difference even within one year has a huge impact on how a child will perform at school.  Often a consolidation of the learning for one extra year will in the long‑term benefit the performance of a young child particularly where there is a change of school and the child’s performance so far was in the average or above average range.  The Mother accepts that Peak School is a wonderful school for the child.  But it is only a primary school. The child in any event has to leave Peak School and move to a new school in the new term in a new environment and acquaint herself with new students.  Hence there is really no stigma as such being attached to the child for being asked to consolidate her learning by repeating the sixth grade.  Further, according to the Harrow system, its lower school is from years 1 to 5 and the upper school is from years 6 to 13.  This means the child by going to year 6 will be starting the upper school together with other new students instead of being the odd girl out if she is only to join the upper school at year 7.

6.4Much has been said by Ms Yip that the child has studied all along under the IB system but now she is being required to study under the UK system and this is an experiment which may not work out and this may have a disastrous consequence on the child. Again some common sense should prevail.  The child is still at a relatively young age and a change to a different teaching system may not be as difficult as a change later in her senior years close to the public examinations.

6.5It is true that Kellett had offered the child a place in grade 7, that is an indication that the child is academically suitable to study in grade 7 but it does not mean by the reasons that we have tried to articulate that going to Harrow at grade 6 is not in the best interest of the child.  In any event, going to Kellett is no longer a viable option.  The choice is only between Island School and Harrow which the Judge had considered and decided in favour of Harrow. 

6.6The Mother had not consulted the Father when she decided to enroll the child in Harrow in the sixth grade.  The order on joint custody stipulated this requirement.  However, since the Court is concerned with the best interests of the child, the non‑observance of the order is only one of the factors to be considered.  We are clearly of the view that the omission is not something that will vitiate the proper exercise of discretion by the Judge.  We accept the Mother’s argument that she is the day‑to-day care giver and is in the best position to know how the child performs.   

6.7Much of the arguments now raised before us had been raised before the Judge who had considered all the factors that werebrought to her attention but nonetheless still come to the conclusion that it is in the best interests of the child to continue her education in Harrow in the sixth grade.  We are of the view that the Judge had not erred in the exercise of her discretion.  Accordingly, we refused to grant leave.

VII.  Costs

7.1The Mother applied for costs of the appeal.  Ms Yip argued that in children matters there is no winning party as such and costs should only be made against the Father if it is shown that he has been acting unreasonably in this application. 

7.2We reserved our decision on costs and directed the parties to file their respective statement of costs and objection.  The Mother filed her statement.  The Father then acted in person and filed a seven page statement together with annexures explaining why he considered he had acted reasonably in lodging the appeal.  In our view this is not permissible as Ms Yip had already objected to the Mother’s application for costs at the time of hearing.  It cannot be further argued afresh.  Bearing in mind the well reasoned judgment of the Judge and the nature of the issue before us, we are of the view that the Father has indeed been acting unreasonably in seeking a further challenge to the child’s choice of school and the Mother is entitled to the costs of the application for leave to appeal.  Although the Mother acted in person before us, she had to consult solicitors in order to prepare her case.  She was charged $46,930 by the solicitors.  The Father said the costs are excessive and referred to the costs recoverable by a litigant in person.  Where the costs claimed by a litigant in person include costs of work done by a solicitor on the litigant’s behalf, the Court may allow such costs but subject to a limit of two‑thirds of the amount claimed : Order 62, Rule 28A(1) and (2) of the Rules of High Court.  We are of the view that this sum is reasonably incurred, but we will limit the amount recoverable to two‑thirds of the sum of $46,930 which we will round up to $32,280. 

The respondent, unrepresented, appeared in person