C v. S

HCMP 929/2017

[2018] HKCFI 2106

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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Before:  Hon B Chu J in Chambers (Not Open to Public)

Date of Hearing:  12 September 2018

Date of Decision:  19 September 2018

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D E C I S I O N

(Leave to Appeal)

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Introduction

1.On 20 June 2018, this Court handed down a decision (“20.06.18 Decision”), granting (a) leave for N to receive treatment or service at the YMT Child Service as directed by Mr Lam Ho Ming Alex, N’s clinical psychologist at the Social Welfare Department, as well as continuing to receive treatment from her private psychiatrist Dr Joanna Lam (“Treatment Order”), and (b) no order as to costs (“Costs Order”).

2.The Father now seeks leave to appeal against the above orders.

3.The detailed background of these wardship proceedings has been set out in the numerous published judgments and will not be repeated here.  The circumstances leading to the 20.06.18 Decision have also been set out therein.

4.The Official Solicitor has been appointed to separately represent N since about 1 March 2018.  Previously, Ms Juliana Chan of the Official Solicitor’s office acted for N, and Mr Ben Li has now replaced Ms Chan.

5.In his intended appeal, what the Father is essentially seeking is an order to set aside the Treatment Order and the Costs Order and for N to receive treatment or service at the YMT Child Service only upon an appointment being secured there, and for costs of the appeal and below be to him.

The Father’s draft grounds of appeal

6.To summarise, the Father’s draft grounds of appeal are, amongst other things, that :

(1) This Court erred in expressing that she did not see either parents’ attitude as being in the best interests of N;

(2) This Court erred in having proceeded on wrong assumptions and on the wrong basis that N’s condition had improved;

(3) This Court erred in ordering simultaneous treatment when, amongst other things, no party had suggested simultaneous treatment and the Court had misunderstood the Official Solicitor’s submission;

(4) This Court erred in making the Costs Order which was plainly wrong.

Ground (1)

7.The Father’s complaint under this ground was that it was only the Mother’s behaviour which had not been in the best interests of N and that he had acted wholly in the best interests of N.

8.The arrangement for N to see a psychiatrist arose at a hearing before this Court on 18 December 2017.  As stated in the 20.06.18 Decision, N’s clinical psychologist Mr Lam has been treating N since 2011.  On 12 December 2017, Mr Lam referred N to the YMT Child Service for N to receive psychiatric assessment and professional intervention as a result of certain statements N had made to the Mother, including that she had “visual images of stabbing her mother to death and ideation of killing her maternal grandparents, God and Buddha”.  The Mother said that N’s symptoms started in November 2017 but she did not immediately tell the Father until after the 1^st Referral Letter was issued by Mr Lam, and without informing the Father and without obtaining leave of this Court (as N is a ward of this Court), the Mother took the Child to see a private psychiatrist Dr Li Seung Yau on 16 December 2017.  All this was only disclosed to the Father and to the Court at the hearing on 18 December 2017. 

9.As a result, this Court was of the view that N should receive urgent psychiatric treatment from a private psychiatrist, as an appointment with a Government psychiatrist would take time, and this was agreed by the Father.  However, the parties were not even able to agree to which private psychiatrist N should consult.  The failure of either party to compromise on the appointment of the private psychiatrist led to further delay in N receiving treatment.  On 3 January 2018, the Court directed that Dr Joanna Lam be appointed (“03.01.18 Direction”).  The Father’s solicitors then wrote a letter to ask the Court to review the appointment.  This Court declined to do so.  All this again caused further delay and eventually an appointment was made for N to see Dr Joanna Lam on about 2 February 2018.  4 days after this 1^st session with Dr Lam, the Father took out a summons for the Mother to make an appointment with the YMT Child Service for N to see a Government psychiatrist.  This then led to the 20.06.18 Decision.

10.It was clear that the Father was not happy with this Court appointing Dr Joanna Lam instead of one of the two psychiatrists proposed by him.  Although in his summons, he did not specifically seek an order that Dr Lam be replaced, his supporting affirmation indicated that he regarded the engagement of the private psychiatrist was in the interim pending the service at YMT Child Service and further his supporting affirmation contained various criticisms of Dr Lam.  However, instead of seeking leave to appeal against the 03.01.18 Direction, the Father chose to issue his summons essentially for an appointment to be made for N at YMT Child Service, but it was clear from his affirmation that upon an appointment being made with the YMT Child Service and N started receiving service there, then N should cease seeing Dr Lam.  The Mother opposed the summons.

11.As I have said in paragraph 21 of the 20.06.18 Decision, as in the past, the Father and the Mother both launched criticisms and attacks against each other in their respective affirmations.

12.Suffice to say, the above were all part of the reasons why I found both parents’ attitude as not being in the best interests of N.

Ground (2)

13.The Father maintained that the treatment by Dr Lam was only “in the interim”.  As pointed out by the Mother’s Counsel, Mr Kevin Li, this was not the effect of 03.01.18 Direction.  It was not this Court’s intention that Dr Lam’s services were to cease upon an appointment being made for N with the YMT Child Service.  Under the 03.01.18 Direction, this Court had directed that, if the parties agreed, referral also be made to YMT Child Service and if no agreement between them, the parties were to issue proper application.

14.The Social Welfare Officer has in her report of 6 March 2018 observed that N’s obsessive behaviour had been reduced though she became a bit quiet and tired after the medication from Dr Lam, and stated that N’s mental condition was stable under medication.  At the present hearing, it appears that the Father is now challenging this observation by the Social Welfare Officer.  However, whether N’s condition had in fact improved after receiving treatment from Dr Lam or not, in paragraph 26 of the 20.06.18 Decision, this Court has stated that there is a real possibility that N would require psychiatric treatment from time to time so long as her parental disputes continue to put her in stressful position.

15.The Father seemed to rely on a letter from the Mother’s solicitors to the Court dated 14 March 2018 to say that N was not just having suspected “obsessive and compulsive disorder” but also “psychosomatic disorder” and alleged that this was “contrary evidence of deterioration” from St Teresa Hospital.  I do not see any medical evidence of deterioration from the said letter of 14 March 2018 from the Mother’s solicitors.

Ground (3) 

16.As submitted by Mr Ben Li for the Official Solicitor, this Court was entitled to take a holistic view of the case.  The Court, in exercising the wardship jurisdiction, which is a parens patriae jurisdiction, is not bound by the parties’ submissions.  The Court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a ward unless limited by case law or statute, and in doing so, the Court shall regard the best interests of the ward as the first and paramount consideration.

17.The Court was informed at the present hearing that after the handing down of the 20.06.18 Decision, the Father had made an appointment with YMT Child Service and the first appointment initials given was 14 February 2020, but the appointment was later moved forward to 5 October 2018 due to urgency. Even so, it would appear to take some 3 months to secure an urgent appointment with the YMT Child Service.  It is not clear at the moment, which Government psychiatrist and indeed whether it will be a designated psychiatrist who will be treating N, and further it is not clear whether N will be given any follow up appointment and if so, when that is going to be.

18.As submitted by Mr Kevin Li, and seen in paragraphs 26-28, the approach this Court took in the 20.06.18 Decision was a pragmatic one which, in this Court’s view, was/is in the best interests of N.

Ground (4)

19.Costs are in the sole discretion of this Court, and the usual order in children cases is no order as to costs unless one party is guilty of unreasonable conduct.  Although I found that the Mother was unreasonably inflexible and notwithstanding the order of 2 March 2018, there was no appointment made by the YMT Child Service by the Mother.  However, as said earlier, I do not see either parent’s attitude being in the best interests of N, and in the end, neither parent had succeeded in obtaining the order he/she sought. 

20.Mr Ben Li has also highlighted the statutory provisions in the Legal Aid Ordinance Cap 91, namely s16C and s17(3).  There was no finding by this Court that the Mother had acted improperly in defending the Father’s summons by not agreeing to Dr Lam being replaced.

Conclusion

21.Having considered the Father’s intended grounds of appeal, I am not satisfied that the appeal has a reasonable prospect of success or there is any other reason in the interests of justice why the appeal should be heard.

22.In the above circumstances, I decline to grant leave, and dismiss the Father’s summons issued on 4 July 2018.

23.I further order the Father to pay the costs of the Official Solicitor and the Mother’s costs of this leave application.  Such costs are to be summarily assessed and to be paid within 7 days of summary assessment.  The Official Solicitor and the Mother are to lodge their respective statement of costs within 7 days and the Father to lodge any list of objections within 7 days thereafter.

Mr Russell Coleman SC, instructed by Chan & Chan, for the plaintiff

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

Mr Lee Chi Keung Ben of the Official Solicitor, for the ward