R, Mj v. Oam, also known as R, Ao

FCMC 4362 / 2016

[2018] HKFC 131

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 4362 OF 2016

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Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not Open to Public)

Dates of Hearing: 27 February –2 March (4 days) and the 15 March 2018

Written closing submissions: 27 April 2018

Written replies: 18 May 2018

Date of Judgment: 8 August 2018

________________

J U D G M E N T
(Custody, care and control and access)

________________

Introduction

1.There are cross applications before the court that now require adjudication. Each party seeks an order for sole custody and care and control of the only child of the family RR, a boy born on the XX January 2005. RR is now 13 years of age.

2.This is a very difficult and highly conflicted case concerning the arrangements to be put in place for a young teenager. By the time the matter came on for trial RR was reported to be showing signs of anxiety and depression reflecting “deep sorrow and powerlessness”. He was also said to have low self-esteem, to have expressed fleeting suicidal thoughts and to have self-harmed by cutting himself.

3.As will be seen the parents have been arguing over the practical arrangements to be put in place for RR for a considerable period of time. The situation is made more difficult because of the mother’s Immigration status which remains unclear. The mother is a Filipino who originally came to Hong Kong on a domestic helper’s contract. Once she married the Petitioner father, who had and continues to have permanent Hong Kong residency status, she obtained a dependant’s visa. She is said to have applied for permanent Hong Kong residency in her own right, but that application is still pending. During the trial the mother said that she agreed that it was in RR’s best interest to remain living in Hong Kong, although previously she had indicated that she might apply to relocate to the Philippines with him. There is currently a very real possibility that she might be deported.

4.In addition, the court has significant concerns about the father’s behaviours/mental health. He appears to have a very quick and volatile temper, to be argumentative, dictatorial and to have little, if any, insight into the effect that his behaviour may have on others. He has on occasion shouted at myself, stormed out of court and ignored express court directions. It seems that he has also behaved in similar ways with the other professionals involved in this case and reference will be made to some of the comments made by them in the body of this judgment. The solicitor for the mother also says that the father has verbally abused her outside of the court room. Overall there is a bullying aspect to the father’s behaviour and ongoing concerns about the effect that his behaviour might have on RR, who appears by all accounts to be a sensitive soul.

5.I should like to add that this case also highlights the limitations of our current statutory framework and the difficulties faced by both judges and other professionals when trying to fully apply the “best interests” principle. As will be seen recommendations have been made during the course of the proceedings which are difficult if not impossible for the Family Court to implement. In addition, further difficulties are caused given the fact that only the Juvenile Court can issue a Care and Protection order.  

Previous court orders

6.At the time of the trial RR’s interim care was shared between the parties in accordance with the court order originally dated the 16 January 2017. There had been an interruption to this order, which will be explained in more detail below. However, on the 7 August 2017 this order resumed. The care of RR was shared so that the Respondent mother had the care of RR from after school every Thursday until 7:00 pm on Saturday (i.e. 2 nights/3 days). RR was in the care of the Petitioner father otherwise. The child was to be in the care of each party for an equal amount of time during the school holidays.

7.On the 28 February 2018, which was the second day of trial, I made a further order granting the mother interim care and control of RR pending further order. This was also subject to the mother’s undertaking that she would ensure that RR went to school and that he would not be left alone.

8.RR was not in school on that day and I was further told that he had been sitting either outside the court or in the vicinity of the court since the commencement of the trial. In addition, the father’s other family members were also present outside of the court including his partner G, their two small children and on occasions, M the elder step brother. I directed on the first day of trial that the family should go home and that RR should go to school. This did not happen and the solicitor for the father indicated that I had no power to make such an order given that everyone was gathered in a public area.

9.Significant concern was expressed by the Official Solicitor and the mother’s legal team about this situation and the pressure that appeared to have been exerted on RR. It was against this background that the Official Solicitor recommended that RR be placed in the temporary care of his mother pending the handing down of this judgment. I made that order, and following an angry outburst by the father, I also temporarily suspended all access.

10.On the 21 March 2018, following the conclusion of the trial I reinstated daily indirect access. I also gave liberty to apply.  The father has since issued a further summons in relation to access and schooling, presumably under the liberty to apply to provision.  Further directions will be given in relation to this and other matters at the end of the judgment.

The issues

11.Consequently, the present issues before the court are as follows:

-   Should either the father or the mother be granted sole custody and care and control of RR? Alternatively, is joint custody a feasible alternative?

-   Should any other directions be given with respect to RR’s education and general care?

-   What access arrangements should be put in place once the issue of custody and care and control has been determined? 

Background to the marriage and the litigation

12.The parties both arrived in Hong Kong in the early 1990’s with the father landing in 1990 and the mother coming out on a domestic helper contract in 1992. It seems that the mother was educated up to tertiary level and that she speaks and reads English well. The father is Bengali Indian and he is now a permanent Hong Kong ID holder. The father is a Chef (although he is currently not working) and he can speak a little Cantonese and English, but has received only a basic formal education. He is unable to read and write in either language. It seems that the parties met in 1996 and that a relationship subsequently developed between them. RR was born on the XX January 2005 in Hong Kong. It is the mother’s case that she was initially the primary care taking parent and that shortly after RR’s birth she and the baby returned to the Philippines. In 2006 the mother came back to Hong Kong to work and she left RR in the care of her parents. On the XX February 2008 the parties married in Hong Kong and the mother subsequently obtained a dependant’s visa. RR returned to Hong Kong shortly thereafter. It is the mother’s case, and this does not appear to be disputed, that she then resumed her role as the primary care taking parent.

13.Unfortunately, the relationship between the parties broke down and in or about February 2014 the mother moved out of the former matrimonial home with RR. She subsequently issued proceedings for divorce based on the father’s unreasonable behaviour and those proceedings were listed before me (i.e. FCMC 8226 of 2014).

14.After the mother moved out of the matrimonial home, she did not initially tell the father where she and the child were residing. She also arranged for RR to change schools. Consequently, there was a period of time where RR had no contact with the father. This led to an application by the father for access. Ultimately the parties reached an agreement that the father would have sole custody and care and control of RR with reasonable access to the mother. It seems that there were significant concerns then, as now, with respect to the mother’s immigration status and her ability to provide for RR from a financial perspective. This agreement is set out in a court order dated the 25 February 2015. Both parties were legally represented at the time.  

15.In May 2015 the mother withdrew her petition. The mother says that the father wished to reconcile with her, whereas the father says that he had never intended to reconcile and that by this stage he had formed a relationship with G, his current partner and cohabitant referred to above. Whatever the truth of the situation is, the fact is that RR continued to live with the mother as before. However, in April 2016, the father intervened. He told the Police that he had sole custody and care and control of RR by virtue of the court order dated the 25 February 2015. It seems that the police then assisted the father in removing RR from the care of the mother. The father then took RR to live with him and his expanding family, in his then privately rented apartment.

16.Shortly thereafter the father issued proceedings for divorce based on two year’s separation. He referred to the order for custody in the petition. Strangely he did not file a Statement of Arrangements for the Child.  

17.Much has been said about the father’s reliance on the February 2015 order in the numerous affidavits filed by the parties in the current proceedings. The mother says that given that she had withdrawn the petition, that the order of the 25 February 2015 should have lapsed. The father for his part maintains that the order remained valid and that he was entitled to rely on it. For the avoidance of doubt I agree with the mother on this point. I do not accept that it was legally correct for the father to have acted as he did and I agree that the original order of the 25 February 2015 had lapsed by virtue of the mother’s withdrawal of the petition. This should perhaps have been made clearer at the time.  

18.The mother then made a number of applications to the court, seeking inter alia interim care and control and in the alternative access to RR. The difficulty however, was that her own situation remained precarious whereas the father’s living condition appeared more stable. At that stage she was living in a single room in Wanchai with limited cooking and other facilities. It was also alleged that her boyfriend stayed over with her and that there was no space for RR. On the 1 August 2016 the court made an order giving the mother half of the school summer holiday; this was followed by a further order on the 6 September 2016 whereby it was ordered that the mother do have interim access each Saturday from 9:00 am – 7:00 pm. On the 13 September 2016 this was followed by a further order whereby the mother was granted weekly staying access from Friday after school until 9:00 pm on Saturday and further access every Wednesday from 5:00 – 9:00 pm.

19.It is of note that on the 7 December 2016 the father moved into a Public Housing Unit in Shatin with RR, G and the rest of the family. It is not known whether the order for custody assisted him in this respect. This is not something that was explored during the trial.

20.On the 16 January 2017 the matter then returned to court for a Children’s Dispute Resolution hearing. Surprisingly perhaps, given the background the parties were able to come to terms as follows:

UPON the parties acknowledging and agreeing that they will each ensure the said child referred to below does his homework while in their respective care and that any transport taken is done so in a safe manner

AND UPON hearing the Petitioner’s Solicitors and the Respondent’s Solicitors

AND UPON the Respondent’s continued undertaking to:-

1.  provide a separate bed for the child and

2.  not allow any person other than the child to stay in her premises during the periods when the child is with her

IT IS BY CONSENT ORDERED THAT:-

1.  The parties shall have interim shared care of the child of the family namely RR a boy born on XX^t January 2005 as follows:

a. The Respondent do have the care of the said child every Thursday after school to 7pm on Saturday when she will deliver the child to the MTR or bus stop to enable the child to return to the Petitioner;

b. The Petitioner do have the care of the child at all other times subject to paragraph 3;

2.  The child shall be in the care of each party for an equal amount of time during the school holidays, the parties to agree between themselves which half of the holidays he shall be with each of them;

3.  This arrangement to continue on an interim basis until further order;

21.The parties, who were both legally aided, agreed not to proceed to trial at that time on the outstanding issue of sole versus joint custody. The decree nisi was subsequently granted on the 26 May 2017 and further directions were given with respect to ancillary relief.

22.Unfortunately, however, this arrangement collapsed in July 2017, when there was an incident at the father’s home when the younger child Rj (the father’s elder child with G) was injured (he sustained a fracture to his right hand). Much has also been said about this incident by both sides. As a result, the father unilaterally suspended all contact between the mother and RR. He blamed the mother and said that she had incited RR to cause trouble at his home, the implication being that RR had deliberately harmed Rj. For the avoidance of doubt I accept that this was an accident and that RR did not mean to deliberately harm Rj.

23.This incident was brought to the attention of the court at the First Appointment hearing on the 20 July 2017. Consequently, the Official Solicitor was appointed to separately represent RR’s interests and an urgent SIR was requested with respect to RR’s immediate short term care. As will be seen in paragraph 39 below, the Social Welfare officer did not ultimately think that this was an appropriate case for an application for a Care and Protection order in the Juvenile Court. Other options were explored for RR’s care, including the possibility of him staying with a third party temporarily, but difficulties remained and given that on the 7 August 2017 the original shared care regime was reinstituted.

The law in Hong Kong

24.As I have said above this case highlights the statutory limitations that exist in a situation where there are valid concerns about both parties’ ability to properly care for a child. The main provisions are found in the Matrimonial Proceedings and Property Ordinance, Cap 192 and the Guardianship of Minors Ordinance, Cap 13. Section 19 of the Matrimonial Proceedings and Property Ordinance, Cap 192 states that:

(1) The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18-

(Amended 69 of 1997 s. 28)

(a) in any proceedings for divorce, nullity of marriage or judicial separation, before, by or after the final decree;

25.The general principles governing such applications are set out in section 3 of the Guardianship of Minors Ordinance, Cap 13, which says that:

GENERAL PRINCIPLES

(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 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;

For the avoidance of doubt s. 48 C Matrimonial Causes Ordinance, Cap. 179 adds that

…… section 3 of the Guardianship of Minors Ordinance (Cap 13) (which provides that the welfare of the minor shall be the first and paramount consideration) shall apply in relation to any order for the custody care or supervision of a child which may be made under this Ordinance or the Matrimonial Proceedings and Property Ordinance (Cap 192).

26.It is also possible for the Director of Social Welfare to make an application for custody or access under section 10 of the Guardianship of Minors Ordinance, Cap 13 which states as follows:

Orders for Custody and Maintenance

10. Orders for custody and maintenance on application of either parent

(1) The court may, on the application of either of the parents of a minor (who may apply without next friend) or the Director of Social Welfare, make such order regarding—  

(Amended 65 of 1986 s. 3)

(a)the custody of the minor; and

(b) the right of access to the minor of either of his or her parents,

(Amended L.N. 80 of 2012)

as the court thinks fit having regard to the best interests of the minor and to the conduct and wishes of the parents.

(Amended 1 of 2012 s. 7)

[cf. 1973 c. 29 s. 2(2) U.K.]

27.In addition, sections 13 and 15 state as follows:

13.Jurisdiction and orders on application under s. 10

(1) Where an application made under section 10 relates to the custody of a minor, then subject to sections 14 and 15—  

(Amended 69 of 1997 s. 3)

(a)if by an order made on that application any person is given the custody of the minor, but it appears to the court that there are exceptional circumstances making it desirable that the minor should be under the supervision of an independent person, the court may order that the minor shall be under the supervision of the Director of Social Welfare;

(b)if it appears to the court that there are exceptional circumstances making it impracticable or undesirable for the minor to be entrusted to either of the parents or to any other individual, the court may commit the care of the minor to the Director of Social Welfare.

15. Additional provisions as to order committing care of minor to Director of Social Welfare

(1) Before making an order under section 13(1)(b) committing the care of a minor to the Director of Social Welfare, the court shall inform the Director of the court’s proposal to make the order and shall hear any representations from the Director, including any representations as to the making also of an order under section 13(2) for payment to the Director.

(Amended 65 of 1986 s. 8)

[cf. 1973 c. 29 s. 4(2) U.K.]

(3)While an order under section 13(1)(b) remains in force with respect to a minor, the minor shall continue in the care of the Director of Social Welfare notwithstanding any claim by a parent or other person.

[cf. 1973 c. 29 s. 4(5) U.K.]

28.In reality it seems that these sections are only very rarely, if ever, relied upon. Certainly, in this case no application was made by the Director of Social Welfare for an order under these provisions.

List of factors

29.In addition, reference has been made by the lawyers to the list of factors referred to in the Children’s Proceedings (Parental Responsibility) Bill. Although this list of factors has yet to find itself into our statute books, I have nevertheless reproduced the same below. I should say at the outset that it is not meant to be an exhaustive list, but is simply a useful guide when considering issues relating to custody, care and control, access, shared care and the best interests of children of generally.  The checklist states that the following should be taken into account:

(a) the ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding);

(b) the child’s physical, emotional and educational needs;

(c) the nature of the relationship of the child with each of the child’s parents and with other persons;

(d) The likely effect on the child of any change in the child’s circumstances;

(e) The child’s age, maturity sex, social and cultural background and any other characteristics which the court considers relevant;

(f) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

(g) Any harm which the child has suffered or is at risk of suffering;

(h) Any family violence involving the child or a member of the child’s family;

(i) How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(j) (a broader formulation along the lines of) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(k) The range of powers available to the court under this Ordinance in the proceedings in question.

(l) Any other fact or circumstance that the court thinks is relevant.”

30.It is acknowledged that it is not generally necessary to go through this list mechanically, but that it can be a useful aid memoire. In this case however I have referred to most of these factors when considering what is in the best interest of RR.  

Each party’s open proposal

31.In her open proposal dated the 23 February 2018, the mother suggested that notwithstanding her claim for sole custody and care and control of RR, that the matter be decided at a later stage and in the meanwhile RR should attend a boarding school as suggested by the Social Welfare officer. She suggested that the parties have regular shared access.

32.Following the trial, the mother’s position changed somewhat and she proposed instead as follows:

2. In essence, this is a very unfortunate case where the Boy [RR] is caught in the middle of the ongoing custody battle between the Father and the Mother, where he is now experiencing tremendous stress and anxiety, and even had suicidal thoughts and believed that his life is a mistake.  In light of the delicate emotional and psychological state of the Boy, it is of paramount and particular importance to arrive at a solution that best protects his welfare.  In view of this, the Mother proposes that;

(a) Sole custody, care and control be granted to her so that the Boy can recover from his emotional and psychological problems, since when the boy is under the love and care of the Mother he is stress-free, relaxed and happy.  That unfortunately cannot be achieved if the Boy is placed under the sole custody, care and control of the Father, given his frequent anger outbursts and unreasonable behaviours, which had already worsened the Boy’s anxiety issues and instilled fear in him (as observed by independent experts and witnesses).

(b) Moreover, it is most unfortunate that it is simply impractical for the Mother and Father to have joint custody of the Boy, given the Father’s dominating style and refusal to cooperate.

(c) In relation to the proposal of placing the Boy in a boarding school, the Mother is concerned that this is a drastic arrangement particularly in light of the Boy’s delicate emotional state. However, if this Court considers it to be an arrangement in the best interests of the Boy, the Mother would fully support it, but would respectfully invite this Court to impose it as a short term measure (as proposed by the experts), whilst also continuing to make a final sole custody, and/or care and control order in favour of the Mother instead of deferring the decision to a later stage.  A closure of the protracted custody dispute is in the best interest of the Boy.

The father’s open proposals

33.The father for his part proposed as follows in his Statement of proposals prior to the trial:

The Petitioner’s Statement of Proposals relating to future arrangements for the child of the family, namely RR, a boy born on XX January 2005 (the “Child”) is as follows.

1. Custody

1.1. Sole custody be granted to the Petitioner/Father.

2. Care, control and access

2.1. In FCMC 8226/2014, by consent, on 25^th February 2015 care and control of the Child was granted to the Petitioner [B/325].  The Respondent/Mother was represented by lawyers at the time.

2.2. On 16^th January 2017 [A/31], Her Honour Judge Melloy ordered that the parties have interim shared care of the Child as below:-

2.2.1. The Respondent have care of the Child every Thursday after school to 7pm on Saturday;

2.2.2. The Petitioner have care of the Child at all other times;

2.2.3. The Child shall be in the care of each party for an equal amount of time during the school holidays.

2.3. Current arrangements are as per the Order of 16^th January 2017.  The Petitioner seeks that such arrangements continue.

2.4. The Petitioner also seeks undertakings from the Respondent

•   to provide a separate room for the Child

•   not to allow any person other than the Child to stay at her premises during the periods when the Child is with her

•   provide the Child with food

•   be physically present when the Child is in her care

These are all undertakings previously given.

3. Residence

3.1. The Child lives with the Petitioner at Flat ABC, Sha Tin, New Territories, Hong Kong.  The Petitioner seeks that this continue

3.2. The people living there are: the Petitioner, the Petitioner’s partner GV and their children Rj aged 3 and RO aged 1 [A/178].

3.3. The Petitioner undertakes to notify the Respondent of any change of the Child’s residence.

4. Education

4.1. The Child currently attends S (S) Primary School.  He is in Primary 6.

4.2. As the Child is to enter secondary school in September 2018, the Petitioner has arranged for the Child to attend X School in Kwun Tong.  There is a direct bus from the Child’s home in Shatin to the school [A/187].

4.3. The Petitioner proposes that the Child continue his education in Hong Kong.

5. Other Arrangements

5.1. As the Child will be in a new environment upon entering secondary school this September, the Petitioner seeks that a further updated Social Investigation Report be prepared later in the year (i.e. September 2018 or later) to appraise the Court of developments in the Child’s welfare and to review care time table.

5.2. Each party has a family caseworker who keeps an eye on the family.  The Clinical Psychologist does not recommend psychological treatment for the Child.

The evidence

34.I must now turn to consider the issues, the law and the parties evidence as set out in their affidavits and Form J’s and as given orally by them during the hearing.  For the avoidance of doubt, in so far as the matters set out in this judgment differ from the evidence of the father or mother, that is because I have preferred the evidence of the other party or because I do not find the evidence given credible, or because I consider that the documents produced confirmed my findings of fact. In addition, I have had the opportunity to observe the demeanor of the parties while they gave evidence in court.

35.I have also heard evidence from two social welfare officers, the clinical psychologist and G. The Official Solicitor also appeared on behalf of RR and has filed a number of reports for the court’s consideration.

36.As will be seen part of the difficulty here is that the recommendation of the Official Solicitor differs from that of the Social Worker and the Clinical Psychologist. The other problem is that both the Social Worker and the Clinical Psychologist have recommended that RR be placed in a small group home. At the same time the Social Worker recommends that there shall be an order for joint custody and that the shared care regime shall otherwise continue.

37.Other difficulties exist with the Official Solicitor’s recommendation. She suggests that RR attend boarding school, but that no final order be made for custody. Whilst it is accepted that the court can make educational orders, including an order that RR attend boarding school, it is not clear how not making a final order for custody will assist here. It is of note that the court was told that RR’s school social worker had looked into the possibility of RR attending a boarding school and that she had identified some that might be appropriate, but that she was unable to take this any further because the parties could not agree. It is reasonably foreseeable that this sort of deadlock will continue unless an attempt is made to put safeguards into the order that will make this less likely.   

The Social Welfare Reports

38.It is trite but worth repeating that recommendations made to the court in social welfare reports although not binding are generally considered to be persuasive. In this case there have been numerous reports filed in court over a number of years and several different social welfare officers have been involved in the case. RR has been repeatedly interviewed and by different people. I have no doubt, having now seen the father in court and in the witness box, that any comments made by RR in those reports were carefully considered by the father. It is therefore not very surprising that RR eventually started to express extreme reluctance to see any of the professionals involved in this case or to express any opinion. 

Updated Social Investigation Report dated the 25 July 2017

39.Two of the social welfare officers came to court to give evidence. Mr L filed the short urgent updated report dated the 25 July 2017. Mr L concluded that:

20.  Based on the available information, the family caseworkers and the school social worker observed that there was no special risk of the Child requiring statutory supervision under care or protection order.  They noted the concern of Family Court and agreed to monitor the case closely.  If there is any need or risk detected in future, they would mobilize the proper services or arrange to apply for care or protection order for the Child immediately.  At this stage, there was no imminent need of care of protection for the Child.

40.Mr L was also asked about boarding schools in the witness box but was unable to provide very much updated information. He confirmed that his understanding was that some of the local boarding schools were more like borstals and that most of the students were Cantonese speaking.  

2^nd Updated Social Investigation Report dated the 8 February 2018

41.Miss L, the most recent Social Welfare Officer to be assigned to the case, filed a more comprehensive report just prior to the trial. As indicated above she ultimately commented and recommended as follows:

42. According to the information collected during present social enquiry, the parents could not gain consensus on the custody and care arrangement of RR.  With different accusations against each other, they failed to build up mutual trust.  Besides, both of them remained rigid and refused to consider applying the concept of “co-parenting” in executing the future care plan of RR.  The only perspective they shared in common was that they had no plan relocating the boy to their native country as they both believed that Hong Kong is the best place for RR’s upbringing.

43. Despite the high conflict in the custody disputes, the parents did make their best efforts performing the child caring role during present adjournment.  For the father, he focused more on child discipline and expected RR, establishing a structural living pattern, to grow up and act like an adult.  While for the mother, she emphasized on fostering RR’s development as a teenage and widening the boy’s exposure.  Given their expressed love and concern to the child, though in a different way, the Investigation Officer wished that the parents, being the role model of RR, could take one more step and learn to exercise the concept of co-parenting on RR while actualizing their care plan on the boy. The Investigation Officer truly believed that only by sincere cooperation between the parents that the best interest for the boy could be secured.

44. RR, reaching the age of 13, is capable in expressing his views.  However, his reservation in giving views and his thoughtful consideration on the feelings of the father during present investigation clearly reflected that he was being triangulated and in dilemma facing the parental disputes.  Frankly speaking, repeated arguments and tensions between the parents had already posed huge pressure on RR and adversely affecting his emotions.  His wishful thinking of reconciliation of his parents so as to make a fully stop to the custody disputes, his wish to be received care and study in a boarding school, his mixed feelings towards the dominating role of the father as well as the mother’s new relationship, all have clearly indicated his desperate feelings towards the present family situation.  Assessment from the clinical psychologist also reflected hat RR was encountering difficulty in mood adjustment and suffered from loyalty conflicts in face of the tense relationship of the parents.

45. Taking into consideration of the above as well as the views of the social workers and clinical psychologist regarding the care plan of RR, the Investigation Officer believed that out-of-home care may be one of the feasible options which would be beneficial to the well-being of RR, stabilize his mood and prevent him from being further triangulated and torn apart by the loyalty conflict in the long run.  Also, the arrangement could allow more room for the parents to deal with the custody disputes while ensuring the welling being of the boy.

46. Upon weighing the physical, emotional and educational needs of the boy, it is recommended that; (i) Petitioner and Respondent shall have the joint custody of RR and (ii) the interim shared care arrangement of RR be remained in force.

42.When asked about the father, she said that he had hung up on her on a number of occasions when she had tried to telephone him in order to discuss matters. She also said that he would speak to her at the top of his voice and that she considered that his behaviour was inappropriate.

The Clinical Psychologist’s report dated the 15 January 2018

43.The Clinical Psychologist Ms Y concentrated on providing the court with a “mood assessment” of RR. She also noted that the father refused to give his consent to a father-son observation session or to fill out a questionnaire. (I accept as suggested by the father’s solicitor that this may have been in part because the father is illiterate). She said this of the father:

41.When the Father was seen alone, the undersigned initially interviewed him on mutual activities between the Father and son.  The Father said, “Don’t ask me nonsense.  You make me angry.  I can call the police now.  I can complain you.”  At another time, he said, “You are psychologist, I am more than you. Don’t ask me.  I tell you only.  You are making trouble.”  He said in a loud voice, “If you make rubbish report, I will be very angry at you.  You make mistakes.  I can put you to jail.  Hong Kong has many jails.  He once said, “You make sure you don’t lie.  I hate anyone lie to me.  I like honesty.  Like RR’s Mother lies.”

44.In so far as RR was concerned she confirmed that he “appeared to be timid, gloomy and tired” and that he seemed nervous and checked his phone to see if his father might call. Generally, when discussing RR’s mood and functioning she said as follows:

Child’s Mood and Functioning

43.  RR expressed that he was brought to see clinical psychologist because he was depressed.  From Kovacs’s Children’s Depression Inventory, the total depressive index was not significant, but the subscale of negative mood was largely elevated.  The Child endorsed items such as “I am sad all the time”, “things bother me all the time”, “all bad things are my fault”, and “I do not like myself”.  From the Youth Self-Report for Ages 11-18, the subscales of anxiety and depressive problem was elevated.  It was worth to note that items of feeling guilty, nervous, fearful, and worried were endorsed. From the Culture Free Self-Esteem Inventory-2 (Form A), result indicated that the Child had very low self-esteem.  He did not generally feel good about himself, whereas self-depreciation in personal and academic aspect was shown.

44.  In RR’s drawing of his depressed mood, he narrated that he drew himself, who sighed and talked to himself saying, “It’s ok, RR. It’s life.”  He was asked to elaborate on the “life” he mentioned.  He said that his life was a mistake, he should not have born to this family, something terrible had happened and he felt sad.  Apart from that, RR said that he was not always happy, and sometimes did not want to talk or do anything.  His sleep and appetite was good though.  He said he thought about killing himself, but he would not do it.  He told himself to stay positive.  He had told his Father he wanted to give up life and Father told him to face the problem.  Besides, he enjoyed school.  He had one best friend in class who made him laugh.  Teachers were nice to help with his homework.  However, he had difficulty concentrating in class.

Child’s view of Father-son interaction

45.  RR described his family that Father was the boss at home.  He liked father teaching him to be successful and to think about his future in Hong Kong.  He liked Father buying Indian movies to him. Nevertheless, he said father often blamed him and he felt afraid of making mistakes.  Father shouted, used foul language and pointed at him.  Those made him feel scared and ashamed.  When he was upset, he told that Father could comfort him by telling him to be calm.

Child’s view of Mother-son interaction

46.  RR depicted that Mother made him laugh, talked to him nicely, and was always forgiving.  When he was upset, he told that Mother could comfort him by taking him for a walk outside.  However, he was upset that his mother rationalized her dating by blaming on his father dating his girlfriend first.  He said, when he lived in mother’s home, he worried that she might put him alone and accident might happen to him.

45.During the cross examination Ms Y reiterated that she thought it would be in RR’s best interests to be placed in a small group home as this would have the advantage of removing him entirely from the parent’s conflict. She confirmed that RR had told her twice that he had thought about killing himself and that she thought he was close to a breakdown. She did not recommend any form of therapy or counselling.

46.It should also be noted that the Clinical Psychologist had written a memo to the court on the 21 February 2018 as follows:

I write to inform about a phone contact from the petitioner to the undersigned’s office on 12.2.18 p.m.

The petitioner called me while I was meeting another client.  He called senior clinical psychologist 2, Mr. C, indicating that I lied and wrote things his son RR did not say in the court report I prepared.  He said he would report to police to arrest me.  He also accused me having received bribe money from the mother to write things against him, so he would report the case to ICAC.  He handed the phone to RR who talked about things he did not say in the previous psychological assessment.  He requested Mr. C to see him and RR to prepare another report to the court.  Mr. C replied him that it was against the law as the court did not appoint him to compile another court report.  The petitioner was advised to bring up his concerns directly to the court.

During my phone conversation with the petitioner on the same day, he indicated that I told lies in my court report and he would fetch police to handcuff me the next day.  He asked me to change my report.  He handed the phone to RR, while he was still talking behind, RR said that his father did not speak foul language to him nor call him up twenty times, and his mother asked him to break RR’s arm. RR repeatedly told me to change my report.  The petitioner then ended the phone call.

47.It seems clear from this letter in particular that RR has on occasion been placed in an impossible situation by his father and that his father has no insight into the effect that this sort of behaviour could have on his son.

The Official Solicitors report

48.The Official Solicitor filed a report dated the 2 August 2018 and an updated report dated the 9 February 2018. In the updated report Ms Ip concludes as follows:

31. Putting aside the Incident, the Interim Shared Care Arrangement has been running uneventfully for more than a year since the Order made on 16 January 2017.  RR has not revealed any strong objection towards either parents’ care.  It is certain that RR loves both the Father and the Mother.  However, the emotional disturbance and trauma cause to RR as a result of their conflicts seem to have greater impact and influence than the love, care and attention he receives from the parents.  In any event, it is inappropriate to let RR feel that he has to make a decision between the Father and the Mother.

32. Since there are uncertainties regarding the Mother’s status in Hong Kong and a possibility that she will have to return to the Philippines following conclusion of this proceedings, and in view of the fact that RR expresses desire to continue to live in Hong Kong, sole custody to the Mother is not suggested unless there is any material changes in her position; as any change in RR’s living will bound to cause him insecurity and unhappiness.

33. So far as the Father’s claim for custody is concerned, in light of the observations as stated in the Psychological Report, we have reservation on recommending custody to the Father unless there is substantial improvement regarding his behaviour and parenting skills.

34. Certainly, the interest of RR is paramount.  It appears that it is in the interest of RR to be placed in a neutral environment, such as boarding school, as requested by RR himself; so that he could be freed from the adult’s conflicts and receive assistance for him to handle his emotional disturbance.  We understand that the social workers of RR’s present school will follow up with the arrangement for boarding school pending decision of the court.  If RR is to stay in the boarding school, this arrangement should be an interim measure, so as to remove RR from an atmosphere of tension and loyalty conflicts, and give him the much-needed psychological treatment in a neutral environment.  Whether it is in the best interests of RR to stay in the boarding school in the long run and for the parents to be granted custody should be assessed at a later stage.

35. Although it is RR’s own wish to stay in a boarding school, he may not have envisaged the changes and challenge ahead.  He should be given proper support and guidance from people around him to assist him to cope with the new environment; hence continued supervision and monitoring by the caseworker is necessary.  It is suggested that progress report be filed in 6 months’ time to assess if there is any emotional outbursts and behavioural protest.

36. It is suggested that psychological treatment and counselling be rendered to RR as soon as possible after RR is placed in a neutral environment, aiming at identifying the root of the problem, and helping him to overcome his emotional disturbance.

37. Psychoeducational trainings should also be given to the parents to help them understand their shortcomings and strengthen the parenting skills.

38. If RR is to be placed in boarding school, to maintain RR’s ties with his parents, regular shared access, to be supervised in a manner deemed appropriate by the Social Welfare Department, shall be arranged.  In the meantime, the Interim Shared Care Arrangement shall continue.

Respectfully submitted.

49.It is of note that the Official Solicitor’s position changed somewhat after the trial had begun, when she and some of the other professionals involved, became increasingly concerned about the pressure being placed on RR outside of court. She was of the view that RR should be placed with the mother in the short term pending the receipt of this judgment. It is also of note that unlike the Clinical Psychologist, she was of the view that RR would be assisted by some psychological intervention. As will be seen I do not agree that vesting sole custody off RR with the mother is likely to cause him unhappiness. I accept however that it may inevitably lead to some insecurity.     

Should either the father or the mother be granted sole custody and care and control of RR? Alternatively, is joint custody a feasible alternative?

Joint custody

50.I should say at the outset that I am not of the view that joint custody is a feasible alternative here. It is clear that the parties are not able to communicate or to co operate with each other at almost any level. This is not a case where an “aspirational” order would be appropriate. Thus I do not agree with the recommendation made by the Social Welfare Officer in this regard. It seems to me that an order for joint custody would most likely be a recipe for disaster.

51.The solicitor for the father argued that a joint custody order would be appropriate as the parties are infact in agreement over some custodial issues such as RR’s religious upbringing. Whilst that may be the case, it is also clear that they are not currently in agreement over where he should go to school or where he should live. As indicated above the Social Worker at RR’s current school was unable to pursue the boarding school option as she needed the consent of both of the parties – which was not forthcoming.  

No order

52.Alternatively, the Official Solicitor recommended that no order be made for custody at the present time. The difficulty with that suggestion is that we have tried that approach before and it has not worked (see the order of the 16 January 2017). I am also aware that the apparent indecision is in itself is probably causing RR a great deal of unnecessary stress. Thus it seems to me that we cannot put the decision off any longer and that a final order must be made – bearing in mind that it is always possible to seek to vary orders for children in any event.

Sole custody

53.In considering the issue of custody reference will be made to the checklist of factors in paragraph 29 above.

a) the ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding);

54.Although RR is 13 years of age it is clear that he has been caught in the “miserable middle” (as one well known Hong Kong psychologist describes it) for a considerable period of time and that he is now reluctant to express any wish or to express his true feelings. However, it is clear that he has a close and loving relationship with his mother and that he also loves his younger half siblings. He also seems to get on well with G. In contrast he seems to have a strained relationship with his father and there is concern that he has been bullied by him and placed on occasion in impossible situations. The mother has exhibited a number of screen shots which shows that RR reaches out to her regularly by text and that he seeks comfort and support from her. It is also of note that he would often visit her both before and after school, even if access was not scheduled. The father says that the mother forced him to do this. I do not agree. I accept that RR wished to see his mother and that he popped into see her as and when he was able.  

55.RR also said previously that he did not like the mother’s boyfriend and that he was uncomfortable when he stayed over as they were all staying in the same room. This concern (if it still exists – the mother says her boyfriend does not live in Hong Kong), has been dealt with by the mother’s undertakings in any event.

56.Overall it is clear from the Clinical Psychologist report that RR was very unhappy and that the status quo – as it then was – was untenable going forward.

b) the child’s physical, emotional and educational needs;

Physical needs

57.The accommodation that each parent is able to provide is just adequate. The mother has rented a second room in her apartment block in Wanchai, which has eased her situation, and RR now has additional space and his own bed. She has limited cooking facilities. On the premise that this can continue, it seems that she can currently provide a home of sorts for RR. 

58.In contrast the father has been allocated a public housing unit, which he has subdivided into small spaces. It is cramped but RR also has his own bed there. I therefore accept that the father can also provide a home for RR.

59.In so far as providing for RR financially is concerned, both parties claimed that they are not working at present. The father, who is a chef, has had regular periods during the course of these proceedings when he has not been working. I am told that this is not a problem however and that he will return to work after this trial. He said in the witness box that he and the family were currently relying on compensation monies that had been awarded to G. It is clear that when the father is working that he works long hours and that RR is cared for by G, who is also responsible for looking after the two younger children.

60.The mother’s current financial position was also unclear and there seemed to be some confusion over whether she was permitted to work or not - see paragraph 19 of her 7^th affidavit dated the 16 November 2017 when she said inter alia as follows:

19. I have engaged solicitors and made application to the Immigration Department for permission to remain in Hong Kong permanently (“the Application”). There is now produced and shown to me marked Exhibit “RAO-24” copies of the documentation relevant to the Application.  I am advised by my solicitors, Messrs. Jal N. Karbhari (“JNK”), that pending determination of the Application, I am permitted to take up employment in Hong Kong.  Accordingly, I have now found employment at an employment agency on a full-time basis.  My salary will be HK$12,000.00 per month plus HK$500.00 commission for each case. In order that I would still be able to take care of RR, I have requested that my work hours be from 9 am to 4 pm.  My days off during the week will be Thursday and/or Friday.  Since this means that I would be occupied on Saturdays, to ensure that RR would not be left alone at home, I have explained my situation to my employer and obtained permission to bring RR with me so that he can do his homework in the office whilst I work.  In addition, I will be arranging for tuition classes and/or extra-curricular activities for RR to attend on Saturdays.

61.However, in the witness box she said that she was not working and that her last job had been with an employment agency in 2013. She also said that she was able to pay for two room in Wanchai and to support herself generally by relying on her savings and the financial support from her family. 

62.If the mother is permitted to remain in Hong Kong, I accept that she will be able to work and to provide for RR from a financial perspective. She strikes me as being a reasonably bright and resourceful woman in that respect. It is not clear what her financial situation will be like if she is deported back to the Philippines.   

Emotional needs

63.I accept that the mother is able to provide for RR’s emotional needs and that he looks to her for love and all forms of emotional support. In contrast the father appears very authoritarian. I do not believe that he will be able to cater for RR’s emotional needs going forward although I accept that he does love RR.

Educational needs

64.Both parties will be able to provide for RR’s basic educational needs. Although RR is 13 years old he has only just completed P6. The father has enrolled him at the Y School in Kwun Tong, which is a short bus ride from the father’s home in Shatin. The mother, for her part, has enrolled him at the Z School (Secondary section) on Hong Kong island, which is similarly a short bus ride from Wanchai. Neither party now wishes him to go to boarding school, as recommended by the Official Solicitor and as originally requested by RR himself. It is of note that RR is English speaking and that he is not fully conversant in Cantonese. The mother was educated up to tertiary level in the Philippines. I accept that she more likely to be able to assist RR with his homework than the father.

65.I have given a lot of thought as to whether or not it would be appropriate to enrol RR in a boarding school at the present time. The difficulty it seems to me is that by all accounts RR is a shy and sensitive child who only speaks English fluently. I am sure that the boarding school option may have looked attractive to him originally, as that would have meant that he would have been taken out of the current situation entirely. The difficulty however is that it may not be an appropriate option for a young person who is seemingly depressed and has fleeting suicidal thoughts. I tend to accept the mother’s updated proposal namely that it would be better for him to stay with her in the short term at least.

c) the nature of the relationship of the child with each of the child’s parents and with other persons;

66.As indicated above it seems to me that RR has a strong and loving bond with his mother and that he has a difficult relationship with his father. I accept that he also has a good relationship with G and that he loves his two younger half siblings. It is also accepted that if the mother is allowed to remain in Hong Kong that she will need to work. The father will also need to work.

d) The likely effect on the child of any change in the child’s circumstances;

67.I accept that RR may not be able to cope with a tough boarding school environment. I also accept, as acknowledged by both parents, that it is probably better if he remains in Hong Kong.

e) The child’s age, maturity sex, social and cultural background and any other characteristics which the court considers relevant;

68.It is of note that RR is an English speaking mixed race child, who has right of abode in Hong Kong. He appears young for his age and as indicated above had not been coping well.

f) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

69.As indicated above although the mother has significant problems I accept that in all of this she has tried to do what she thinks is best for RR. I agree that the father is concerned about RR and that he believes very strongly that children should live with their parents. However, given the father’s behaviour’s it seems to me that it cannot be in RR’s best interests to live in his father’s household given his almost complete lack of insight into the effect that these behaviours have on others, including RR.

g) Any harm which the child has suffered or is at risk of suffering;

70.I am very concerned that RR has been exposed to psychological harm. Although I accept that this may have been exacerbated by the litigation, it seems to me that the biggest risk factor here is the way in which the father has conducted himself.

h) Any family violence involving the child or a member of the child’s family;

71.I am concerned about the way in which the father reacted to the incident with Rj and the fact that it seems that RR was blamed for this.

i) How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

72.I accept that the mother is able to meet RR’s emotional needs and that she is currently able to meet his physical and educational needs. There is an argument that she will only be able to continue to meet his physical and educational needs if she is permitted to remain in Hong Kong. If not, the suggestion is that she will then not be able to meet those needs. There are however a number of different options open to the mother and RR if she is forced to leave Hong Kong given that RR was born in Hong Kong. There is the possibility that RR could then be enrolled in a boarding school – or that he could be placed in a small care home. This is especially the case if the father’s consent was no longer required to either of these options. It would also be possible for the mother to apply for leave to remove RR permanently from the jurisdiction of Hong Kong in order for him to reside with her in the Philippines.

73.In contrast I accept that the father is able to meet RR’s physical and educational needs, but not his emotional needs. It is also of note that the other significant person in this situation, G also has immigration issues. If RR lives with his father he would continue to be cared for by G on a day to day basis. G has two other children of her own to care for and her own immigration status is questionable notwithstanding the fact that the court granted the father a section 18 declaration on the 27 November 2017. This was to enable the decree absolute to be granted, which in turn would leave the way clear for the father and G to marry. However, they had not married by the time of the trial, although they both confirmed that this was their intention. This is also a matter of some concern. I do not think that the father would be in a position to care for RR on a day to day basis without G’s assistance.

j) A broader formulation along the lines of the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

74.This factor may become relevant in the event that the mother applies to relocate to the Philippines with RR. However, it is not of relevance right now.

The character of the parties

The mother

75.It is important when considering the arrangements for children that the judge has an opportunity to see the parties in the witness box so that she is able to form a view of them for herself. This case was no exception.

76.Although the mother’s evidence was not entirely credible, for example she was elusive when asked whether she was only allowed to remain in Hong Kong pending the outcome of these proceedings and her evidence concerning her employment situation was unclear, I have no doubt that she is a good and loving mother to RR.  

77.The mother’s solicitor, acknowledged her client’s shortcomings in part when she said in the penultimate paragraph of her Closing submission that:

The Mother is not saying that she is an impeccable mother, but she has been and will continue to work hard to provide the best care and support for the Boy (RR). 

78.I accept that to be the case. It is clear that the mother is very concerned about RR’s welfare and that she loves him very much. She is softly spoken and was very considered in the responses that she gave in the witness box. Although she may not have been the most honest witness in the world, that does not detract from her relationship with RR, or her role as his mother. I accept that she has found herself in a very difficult predicament and that she is doing the very best that she can for her son in the circumstances.

The father

79.As indicated above the father presented as someone with either a mental health issue or serious behavioural issues. I have concerns about the effect that his behaviour could have on RR both is the short and longer term.

Conclusion on custody and care and control

80.Bearing all of the above in mind I have therefore decided to grant the mother sole custody and care and control of RR notwithstanding the fact that there is the possibility that she will be deported. It is also ordered that RR shall attend Z School with effect from September 2018. It is further directed that in the absence of any agreement between the parties that the mother shall be able to enrol RR in a boarding school or seek the help of the social services and arrange for RR to be placed in a small group home. Thus the fact that the father refuses to sign any documentation or to take part in the process should not hinder the mother from making whatever arrangements she deems fit for RR going forward.

Should any other directions be given with respect to RR’s education and general care?

81.I further accept that the mother shall continue to be bound by the undertakings that she gave previously, subject to a little fine tuning as follows:

The mother shall continue to provide a separate bedroom for RR;

The mother shall provide RR with food

The mother shall be physically present when RR is in her care or she shall ensure that he is cared for by another responsible adult.

What access arrangements should be put in place once the issue of custody and care and control has been determined?

82.I am not sure what kind of contact RR has had with his father since he began living with the mother. I will therefore adjourn the issue of access to the 3 October 2018 at 9:30 am. Both parties shall file short proposals with respect to the appropriate arrangements for access going forward. I will also ask the Official Solicitor to write a short updated report in relation to the same.    

Costs

83.Given the nature of this dispute and the fact that both parties are legally aided I shall also make an order nisi to be made absolute at the expiration of 14 days that there shall be no order as to costs including all costs reserved.

Order

84.UPON HEARING the solicitor for the Petitioner and the solicitor for the Respondent

AND UPON the Respondent continuing to undertake to

a) to provide a separate bedroom for RR;

b) to provide RR with food;

c) to be physically present when RR is in her care or she shall ensure that he is cared for by another responsible adult.

IT IS ORDERED THAT

1) For the avoidance of doubt the order dated the 25 February 2015 in FCMC 8226 of 2014 shall be discharged;

2) Order 1 contained in the court order dated the 16 January 2017 and the order dated the 28 February 2018 in these proceedings, that interim care and control of RR be vested in the Respondent mother shall be varied to the effect that the sole custody and care and control of RR a boy born on the XX January 2005 be to the Respondent mother;

3) It is further ordered that RR do attend Z School on Hong Kong island with effect from September 2018;

4) The issue of access shall be adjourned to the 3 October 2018 at 9:30 am;

5) Both parties do personally attend that hearing;

6) Both parties shall file a Statement of Proposals in relation to access only 3 days prior to the hearing;

7) The Official Solicitor do file and serve a short updated report on the issue of access only, 14 days prior to the hearing;

8) An updated Social Investigation Report be called for in 12 month’s time;

9) There be an order nisi to be made absolute in 14 days’ time that there be no order as to costs including all costs reserved. Both parties’ own costs to be taxed in accordance with Legal Aid Regulations;

10) There be liberty to apply on an urgent basis.

IT IS FURTHER DIRECTED THAT

11) In the absence of agreement between the parties the Respondent mother shall be permitted to enrol RR in a boarding school or seek the help of the social services and arrange for RR to be placed in a small group home;

12) Therapeutic support/counselling to be arranged for RR through the Social Welfare Department.

Ms Usha Casewell of Boase Cohen & Collins appeared for the Petitioner

Ms Rebecca Chiu of Chiu & Co appeared for the Respondent