Ccmj v. Ssm (Formerly Known As Skl)

CAMP 147/2018

[2019] HKCA 267

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 147OF 2018

(ON AN INTENDED APPEAL FROM HCMP NO. 929 of 2017)

_________________

_________________

Before: Hon Cheung and Chu JJA in Court

Date of Judgment: 6 March 2019

_________________

JUDGMENT

_________________

Hon Chu JA (giving the Judgment of the Court of Appeal):

1.This is the plaintiff’s renewed application for leave to appeal the decision of Chu J (“the Judge”) made on 20 June 2018 ordering, inter alia, that the parties’ child, who is a ward of the Court, was to continue with her treatment with a private psychiatrist (“JL”), while receiving service and treatment from the Yaumatei Child and Adolescent Mental Health Service (“YMT Child Service”), with no order as the costs of the plaintiff’s application by summons dated 6 February 2018. The plaintiff’s application to the Judge for leave to appeal was refused on 19 September 2018.

2.We consider it is appropriate to determine the application on paper without an oral hearing pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A.  

The facts

3.The plaintiff (“Father”) and the defendant (“Mother”) are respectively the father and mother of the child, who was born in November 2008.  The parties are not married.    

4.In March 2010, Father commenced FCMP 67/2010 in the Family Court to apply for the custody, care and control of the child. On 5 October 2012, the Family Court granted the custody, care and control to Mother with access to Father.  Since then, the parties have been embroiled in a string of litigations over Father’s access to the child and Mother’s application for financial relief.

5.Consequent upon the wardship proceedings brought by Father in HCMP 929/2017, the child has become a ward of the Court.  Since 1 March 2018, the Official Solicitor has been appointed to separately represent the child in the proceedings.  On 12 October 2017, Father was granted all the rights and authority under s.3(1)(d) of the Guardianship of Minors Ordinance, Cap. 13.

6.Since 2011, the child has been seeing a clinical psychologist (“AL”) at the Social Welfare Department to address her distress as a result of being trapped in the parental disputes.  On 12 December 2017, as a result of certain behaviour of the child observed by Mother and statements the child made to Mother, including that she had visual images of stabbing Mother to death and ideation of killing her maternal grandparents, God and Buddha, AL issued a referral letter to refer the child to YMT Child Service to receive psychiatric assessment and professional intervention.   

7.In a hearing before the Judge on 18 December 2017, Mother revealed that the child had developed psychiatric symptoms as early as November 2017 but she did not tell Father about it until after AL issued the referral letter.  It was further revealed that, without informing Father and without obtaining the leave of the Court (which was required as the child is a ward of the Court), Mother had brought the child to see a private psychiatrist who diagnosed the child to be suffering from obsessive compulsive disorder.  The Judge directed that the child should receive urgent psychiatric treatment from a private psychiatrist, considering that appointment with government psychiatrist could take time.  As the parents could not agree on the choice of the private psychiatrist, the Judge ordered on 3 January 2018 that JL be appointed as the child’s treating psychiatrist. The Judge further ordered that (i) if the parties agreed, referral was also to be made to YMT Child Service; and (ii) if there was no agreement, the parties were to issue appropriate application.  The child had her first appointment with JL on about 2 February 2018.

8.On 6 February 2018, Father took out a summons applying for an order that Mother should make an appointment with the YMT Child Service for the child to see a government psychiatrist.  Mother opposed the application primarily on the basis that the child had already been receiving private treatment from JL. The Official Solicitor’s view was that it was appropriate for an appointment to be made with the YMT Child Service, but it should not be regarded as a means to replace the treatment the child was receiving from JL.  

9.At the direction hearing on 2 March 2018, the Judge directed Mother (without prejudice to her position) to make an appointment with the YMT Child Service by 7 March 2018.  Mother, however, only did so on 7 March 2018, but by then the validity period of AL’s referral letter had lapsed.  It was not until 10 May 2018, and after some arguments between the parties, that a second referral letter was obtained from AL.   

The Judge’s decision

10.On 20 June 2018, the Judge, after considering the submissions from the parties and the Official Receiver, ordered, inter alia, thatleave be given for the child to receive treatment or service at the YMT Child Service, while continuing to receive treatment from JL.  The Judge made no order as to costs, save that Mother’s own costs be taxed under the Legal Aid Regulations.

11.The Judge’s reasons for the orders are encapsulated in [21] to [30] of the decision handed down on 20 June 2018 as follows[1]:

“21. The Father and the Mother, as they have been in the past, launched criticisms and attacks against each other in their respective affirmations. The Father had also criticized [JL]’s professionalism which, in my view, was completely uncalled for.

22. On the other hand, the Mother had not explained why she could not produce any address proof for the making of the appointment as ordered by this Court on 2 March 2018, or why there had been no further steps taken by her to secure an appointment. I agree with Ms Chan’ s observations on this matter. In my view, the Mother has been unreasonably inflexible.

23. The reason why this Court ordered N to see a private psychiatrist in December last year was because an appointment with the YMT Child Service would take time, as with most Government doctors, and the Court was of the view that N should receive urgent treatment. The Court did not exclude the possibility that N should also receive treatment from a Government Psychiatrist, as seen in the direction made on 3 January 2018.

24. Having read the parents’ respective affirmations, I do not see sufficient evidence as to why N cannot see both a private psychiatrist and a Government psychiatrist at the YMY Child Service, or why it should be either one or the other.

25. I do not see the parents’ attitude is in the best interests of N and it is clear that N is much disturbed by being the focus of the prolonged parental disputes and being trapped in between for years, as observed by Ms Chan.

26. Although N’s condition is observed to have improved after receiving treatment from [JL], there is no evidence as to when she will fully be recovered, and as pointed out by Ms Chan, so long as the parental disputes continue to put N in a stressful position, there is a real possibility that N would require psychiatric treatment from time to time. As further pointed out by Ms Chan, as N does not have her own means and needs to rely on the Father for financial support, and in view of the protracted disputes between her parents, which are still in high conflict and ongoing, it will be in N’s best interest for an appointment to be secured with YMT Child Service, as not only would it provide professional and affordable psychiatric services to N when in need, it will also serve as a medical safety net for N, and the proposed appointment will not deprive N the right to seek private psychiatric treatment if required.

27. The first available appointment from YMT Child Service is likely to be after December 2019.

28. I agree with the views put forward by Ms Chan, that the appointment with YMT Child Service should not be regarded as a means to replace the current treatment that N is receiving from [JL].

29. Hearing considered all the circumstances, I am prepared to order as follows:

(i) Leave for N to receive treatment or service at the YMT Child Service as directed by [AL] in the 2nd Referral Letter, as well as continuing to receive treatment from [JL];

(ii) The Mother do within 7 days hand over to the Father all necessary documents concerning N requested by the Father for the purpose of making the appointment, including the original of 2nd Referral Letter and the original of N’s HKID card, upon the Father’s undertaking to make an appointment within 3 days upon receipt and to return to the Mother all original documents within 2 days after an appointment has been made for N.

(iii) N is to be accompanied by her parents jointly to YMT Child Service but neither parent is to be present at the time of treatment.

30. As neither party has succeeded in full in obtaining the orders sought by him/her, I make no order as to costs.  The Mother’s own costs to be taxed under Legal Aid Regulations.”

Grounds of appeal

12.Father advanced two grounds in the draft Notice of Appeal:

(1)  The Judge erred in ordering the child to continue receiving treatment from JL in addition to receiving treatment or service at the YMT Child Service in that this poses real risk on the child’s mental and physical well-being, and there is no proper basis for the order.

(2)  The Judge erred in making no order as to costs in that she failed to consider the ramification of, or calling a stop to, Mother’s behaviour which was adverse to the child’s welfare, and there was no proper basis for the order. 

Ground (1): Continuing with treatment with the private psychiatrist

13.Ground (1) is directed at the Judge’s order that the child shall continue to see JL while attending the YMT Child Service for treatment and service.  Mr Coleman SC, who together with Ms Wong for Father, put forward the following arguments in support of this ground:  

(1)  There is no reason for the continuation of the private treatment after the child receives service at the YMT Child Service, which provides specialized and comprehensive child psychiatric and psychological services and has previously treated the child on her psychological needs.  There was also no medical evidence to support a need for simultaneous or parallel treatments. 

(2)  There was no medical evidence to address the risks or issues of (i) conflicting prescription of drugs and therapies; (ii) liaison between doctors in different sectors (public and private) on the treatment to be dispensed to the child; (iii) confusion as to which doctor was to lead the treatment; and (iv) disagreement as to the appropriate treatment. 

(3)  The Judge appeared to have misunderstood the submission of the Official Solicitor as recommending parallel treatments from two doctors. The Official Solicitor was only agreeing with Father’s position that making an appointment with the YMT Child Service would not in itself replaced private treatment, so that to do so was in the child’s best interests.

(4)  Insofar as the Judge proceeded on the assumption that Father was suggesting a cessation of private treatment, Father had throughout accepted and suggested that private treatment be continued in the interim.  Father’s application was not to negate or otherwise remove the option of private consultation for the child in situation of urgency.

(5)  The interim nature of seeing the private psychiatrist had all along been clear, as evidenced by the Social Welfare Report, the parties’ correspondence, the exchanges at the Court hearing and the directions given by the Court.  The aim of the interim measure was to address the child’s medical need while waiting for the service of the YMT Child Service. 

14.In opposing Father’s application, Mr Kevin Li for Mother submitted that:

(1)  There was no expert medical evidence to support Father’s contention that parallel treatments by two psychiatrists would pose real risks to the child’s mental and psychiatric well-being. 

(2)  The child has been receiving treatments from JL since February 2018 and has built up trust and confidence in JL. As observed in the Social Welfare Report dated 6 March 2018, it would not be conducive to the child’s psychological well-being to remove her from the present stable and nurturing environment.

(3)  Although neither party had suggested parallel treatments, the Judge was not bound by the parties’ submissions in arriving at what was considered to be in the best interests of its ward. 

(4)  Father was proceeding on a wrong assumption when contending that seeing JL was only an interim measure.   

15.Father’s present application is also opposed by the Official Solicitor who pointed out that:

(1)  It was clear from the 3 January 2018 decision that the appointment of JL was not an interim arrangement.

(2)  The social welfare report dated 6 March 2018 had observed improvement in the child’s condition after she received treatment from JL.

16.In wardship proceedings, the Court exercises a parens patriae jurisdiction, and takes as its first and paramount consideration the welfare and best interests of its ward.  Its jurisdiction is unfettered and the Court is not bound to accept the submissions or positions taken by the parties. 

17.Accordingly, notwithstanding that Father sought an order for the child to receive treatment from the YMT Child Service while Mother contended that the child should continue with the treatment with JL, it was open to the Judge to direct the child to receive treatment from both the YMT Child Service and JL, if this was considered to be in the child’s best interest.  It is likewise immaterial the Official Solicitor’s submission was that the child should receive treatments from government and private psychiatrists in parallel.    

18.It is evident from the reasons given by the Judge that she had put the best interest of the child at the foremost of her consideration (see [26] as quoted in [11] above).  The Judge took the view that: (i) the child was likely to require psychiatric treatment from time to time; (ii) the YMT Child Service would provide professional and affordable psychiatric services to the child when in need; (iii) the child does not have independent financial means; (iv) the YMT Child Service would therefore provide a medical safety net for the child; and (v) the child’s right to receive private psychiatric treatment would not be deprived.  These are all legitimate and proper considerations. 

19.The argument that there was no medical evidence to indicate a need for the child to receive treatments from both government and private psychiatrists is misplaced as the Judge made the decision out of practical considerations and not on account of health or medical considerations.  As for the various concerns raised by Father (see [13(2)] above), there is no medical or other evidence to substantiate the worries and risks alluded to.

20.With regard to the suggestion that the appointment of JL was interim in nature and was to await the availability of appointment with the YMT Child Service, this does not accord with the Judge’s intention.  It was pointed out in [23] of the decision dated 20 June 2018 that “The Court did not exclude the possibility that [the child] should also receive treatment from a Government Psychiatrist, as seen in the decision made on 3 January 2018.”  In the 3 January 2018 decision, it was stated that on top of engaging JL, referral should also be made to the YMT Child Service.  In [13] of the decision dated 19 September 2018 refusing leave to appeal, the Judge confirmed that it was not her intention that JL’s services were to cease upon an appointment being made for the child with the YMT Child Service.

21.Even if, for the purpose of argument, it was the case that the appointment of JL was an interim measure to address the urgent need of the child, it would not have prevented the Judge from ordering the continuation of her engagement in addition to retaining the service of the YMT Child Service if this is in the best interest of the child.  As pointed out by Mr Ben Li for the Official Solicitor, there is no evidence to indicate that parallel treatments by the government and private psychiatrists is not beneficial to the child or is against the child’s welfare. On the other hand, there is evidence that the child’s condition has improved after consulting JL.    

22.We are therefore of the view that Ground (1) is not reasonably arguable.

Ground (2): The costs order

23.Ground (2) relates to the Judge’s decision to make no order as to the costs of the 6 February 2018 summons.  It is Father’s contention that Mother should be ordered to pay the costs of the application. 

24.Mr Coleman argued that: (i) Mother had repeatedly breached Court orders, including failing to make prompt appointment with the YMT Child Service, and she was found by the Judge to have been unreasonably inflexible in dealing with the child’s psychiatric need; (ii) the Judge failed to appreciate that the costs order would have the effect of condoning or encouraging Mother, who is legally aided, to continue with her unreasonable behaviour; and (iii) Father acted wholly in the child’s interest and had succeeded in his application for an appointment be made with the YMT Child Service for the child.

25.In reply, Mr Kevin Li submitted that: (i) it is usual to make no order as to costs in matters relating to children; (ii) the Judge’s costs order was premised on neither party had succeeded in full; (iii) Father’s complaints against Mother were unfounded; and (iv) the Judge had found Father’s criticisms on JL’s professionalism completely uncalled for, which, in itself, would be a good basis to deprive him of costs: Sutton London Borough Council v Davis (No 2) [1995] 1 All ER 65 at 67J.

26.The Official Solicitor made no comment on this ground of appeal, other than to highlight sections 16C and 17(3) of the Legal Aid Ordinance, Cap. 91, the latter provides that where it appears to the court that a legally aided party has acted improperly in bringing or defending any legal proceedings or in the conduct of them, the court may order the aided party to pay, inter alia, the costs of the other party.

27.Costs is a matter of the court’s discretion.  It is trite that the Court of Appeal will not interfere with a first instance judge’s discretion on costs unless it is wrong in principle or the judge is plainly wrong in the exercise of discretion. 

28.In making no order as to costs, the Judge had regard to the fact that neither party was wholly successful.  Although this is not apparent from the summons itself, Father’s stance as appeared by his affirmations in support of the summons was that treatment by JL should cease upon an appointment had been made with the YMT Child Service.  The Judge did not accept this is in the child’s best interest and had ordered that the child should continue with JL’s treatment.  In the decision refusing leave to appeal (at [19]), the Judge further pointed out that in cases concerning children, it is usual to make no order as to costs unless one party is guilty of unreasonable conduct, and that she considered neither parent’s attitude was in the best interest of the child. 

29.In our view, the Judge did not err in principle in considering that it is usual to make no order as to costs in cases concerning children unless one party has acted unreasonably or improperly.  We also agree with the Judge that neither Mother nor Father could be regarded as the successful party in the application before her.  Further, on the materials before the Court, the Judge was justified in taking the view that both parents’ attitude was in the child’s best interest.  While the Judge found Mother to be unduly inflexible and did not act promptly to make the appointment with the YMT Child Service in accordance with the Court’s direction, she was disapproved of Father’s uncalled for criticism of JL.  Taking the circumstances of the case as a whole, it is within the Judge’s discretion to make no order as to the costs of the application.

30.There is no basis at all to disturb the Judge’s costs order.  Ground (2) is not reasonably arguable.

Conclusion

31.For the reasons above, the intended appeal has no reasonable prospect of success, and there is no other reason in the interests of justice that requires the appeal to be heard.  Accordingly, we refuse the plaintiff’s application.  

Costs

32.While it is a child matter and the Court in the usual circumstances will not impose a costs order on either one of the parents, this is a case where the plaintiff should be ordered to pay the costs of the defendant and the Official Solicitor.  The plaintiff has failed once in his leave application before the Judge and still persists in renewing the application before his Court when the application has no merits.

33.The defendant and the Official Solicitor have lodged their respective statements of costs for summary assessment.  We would at the outset point out the following matters of principle:

(1)  The costs are assessed on party-and-party basis.

(2)  The costs for gathering information and drafting the statement of costs is generally not allowed: see Practice Direction 14.3 at [13].  Hence item D1.2 of the defendant’s statement of costs and item (IV) of the Official Solicitor’s statement of costs will not be allowed.

(3)  In party-and-party taxation, usually only the costs of one fee-earner is allowed on an item of work.  This will apply to, for example, the items under D2 in the defendant’s statement of costs. 

34.We also note that the papers and arguments in this application are more or less the same as those in the leave application before the Judge.  The defendant’s solicitors and counsel, who also represented the defendant in the leave application before the Judge, should therefore be familiar with the papers and the arguments involved in this application.

35.Taking into consideration the matters above and adopting a broad-brush approach, we summarily assess the defendant’s costs at HK$60,000, and the Official Solicitor’s costs at HK$42,000.     

Disposition

36.We make the following orders:

(1)  The plaintiff’s summons is dismissed.

(2)  The plaintiff pays the defendant and the Official Solicitor the costs of the application.

(3)  The defendant’s costs are summarily assessed at HK$60,000.

(4)  The Official Solicitor’s costs are summarily assessed at HK$42,000.

37.Since the application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of High Court that no party may request to have our determination reconsidered in an oral hearing inter partes.

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

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

Mr Ben Li of the Official Solicitor for the Ward of the Court.