Elaine Elizabeth Magee v. Christopher Walford Magee

Case No.CACV 31/1970

Court

Court of Appeal

Date18 Aug 1970

Judge—

Case Document

100%Judiciary

CACV000031/1970

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 31 OF 1970

(On appeal from D.J. No. 4 of 1965)

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BETWEEN:
	Elaine Elizabeth Magee	Petitioner (Respondent)
	AND
	Christopher Walford Magee	Respondent (Appellant)

Coram: Rigby, C.J., and Scholes and Mills-Owens, JJ.

Date of Judgment: 18 August 1970

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JUDGMENT

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1. This is an appeal from an order of Pickering, J., given in Chambers, granting an application of the wife petitioner - the respondent to this appeal - for leave to remove her two children, Louise and Christopher, from the jurisdiction of the Colony. At the same time the learned judge dismissed a cross-summons filed by the respondent, the appellant in this appeal, asking the learned judge to vary a decision previously made by Huggins, J. granting custody of the two children to the petitioner. It would be convenient to continue to refer to the parties, the present appellant in this appeal, as "the respondent" and the present respondent in this appeal as "the petitioner".

2. The facts giving rise to the application made before Pickering, J. may be briefly stated. On the 17th July, 1965, a decree nisi for divorce was granted by Huggins, J. to the petitioner as against the respondent. That decree was made absolute on the 23rd November, 1965. Both the petitioner and respondent are citizens of the United States of America. At the time of the granting of the decree, the custody of the two children of the marriage, namely Louise and Christopher, now aged 15 and 12 1/2 years of age respectively, was granted to the petitioner. At the same time an agreement, made with the consent of both parties, was before the court. Under the terms of that agreement it was provided, inter alia, that the respondent - and we quote the terms of the agreement:-

The Respondent shall have the right after consultation with the Petitioner to decide which school Christopher Walford Jnr. shall attend after he attains 11 years of age".

Huggins, J. ordered that maintenance and access to the children should be in the terms of that agreement signed by the parties and filed with the Court.

3. By the terms of the affidavit put before Pickering, J., in support of the summons of the petitioner, it appears that the petitioner is now anxious to marry an Englishman working and residing in England, that she is anxious to take her two children with her and that the person she seeks to marry has already signified his approval and consent to have the two children, Louise and Christopher, to live with him and his intended wife. The Englishman was himself previously married but was granted a decree nisi on the 29th April, 1970, and that decree was made absolute on the 30th July, so that there is no valid legal bar to the marriage of the petitioner to the man whom she now wishes to marry.

4. It would appear from the affidavit filed before Pickering, J. that the respondent does not object to the girl, Louise, going to live with the petitioner in England but he has the strongest objection to the boy, Christopher, going to live with the petitioner and the man whom she seeks to marry and going to school in England. The petitioner, on the other hand, whilst recognizing the obvious desirability of the boy being brought up and educated as an American in an American school and in America, and whilst recognizing the wish of the respondent that that should be done, is of the opinion that the boy is at present too young to go to a boarding school in America and she wishes to have him with her in England and to go to a day school until he attains the age of approximately 13 1/2 when she is fully prepared,subject to preserving her right of access to him and to seeing the boy during his holidays, that he should go to America for the continuance of his education. Up to the present the boy has been, and is being, educated at the Island School in Hong Kong, and it is clear from the reports from his school, which were produced in evidence, that he is a bright and promising youth. The respondent contends that the boy should be permitted to continue his education in Hong Kong at the Island School, where he is happily settled and is doing well, until he has reached an age when he can go to school in America. The respondent has put forward the names of two schools in America, both of which the petitioner accepts as well-known and good schools and with which the respondent has close family connections. The respondent has further stated by his affidavit that his own brothers and/or friends in America would be ready and willing to look after the boy during his holidays.

5. The issue, then, is: should the boy go with his mother to England and continue at a day school in England until he is ready to go to America or, on the other hand, is it in the better interests of the youth that he should continue at the school in Hong Kong, where he is now apparently doing well and that he should live with his father, who is in a position to look after him in Hong Kong, until he is of an age when he can be admitted to a school in America for the furtherance of his education? The question is obviously a difficult one to answer and one can readily appreciate and sympathize with the views of both parents, faced with this distressing situation and decision. However, we are firmly of the opinion that rather than that he should be up-rooted from Hong Kong and taken to England and placed in a day school for the next 12 months in a new environment, a new school and a different household, until he goes to America to complete his education, it is very much more in his interest that he should remain at the Island School in Hong Kong, where he is admittedly doing very well, and live with his father here in Hong Kong until arrangements can be made for him to go as a boarder to school in America and be brought up as an American citizen. In our view the learned judge, Pickering, J., erred in principle in concluding otherwise. It is conceded by both parents that the children have no divided sense of loyalty and that they are in fact devoted to both their mother and their father. No suggestion is made that the father is an unfit person to look after the boy.

6. We therefore allow this appeal to the extent that we vary the original order giving sole custody of the boy to the petitioner and we order that both parents shall have the joint custody of the boy and we grant the care and control of the boy to the father. We further set aside the permission granted to the petitioner to remove the boy Christopher from the jurisdiction of this Court.

7. The respondent has informed us that for the purpose of the boy Christopher being admitted to, and accepted by, a school in America, it will be necessary for him to be interviewed in America by the school authorities and, indeed, to pass an entrance examination. For this purpose it is obviously necessary that the boy should be permitted to leave the Colony in the company of his father. We appreciate the obvious risk in permitting the respondent temporarily to remove the child to America where, of course, this Court would no longer have any jurisdiction over him. We were, however, impressed by the patent sincerity with which the respondent addressed this Court and we think that, subject to certain safeguards which we hope can be amicably arranged between the parties, permission ought to be given to him to take the boy to America for the purposes we have indicated above and upon the condition that, the necessary arrangements having been concluded to provide for his future education in America, he will be brought back to Hong Kong to live with his father until the time has finally arrived for him to return to America to commence that education.

8. We do, therefore, subject to any safeguards that may require to be imposed, give leave to the respondent to take the boy out of the Colony for the purposes that we have indicated above.

9. If the parties are unable to agree as to the conditions upon which the respondent should be permitted to take the boy to America for the purpose of making these necessary arrangements as to his education in that country, then this Court will, of course, have to determine that matter.

10. In view of the fact that we have given joint custody to both parents, we think it necessary and proper in the Order we now make, to give liberty to either party to apply at any time in the future in regard to matters concerning the custody, welfare and maintenance of the boy. In this connection, we consider that it would be premature at this stage to give unrestricted leave to the respondent to take the boy out of the Colony at some future date next year when he is ready to go to the school in America for which he has been selected, and by which he has been accepted, and that it would be more appropriate that the grant of such leave be conditional upon these educational arrangements being satisfactorily and conclusively settled.

11. The consequential orders we, therefore, make are in the following terms:-

	(1)	That the custody of Louise remain in the Petitioner and that permission be granted to the Petitioner to take her out of the jurisdiction permanently; reasonable access to be afforded to the Respondent;
	(2)	That the order for custody of Christopher made on the granting of the decree of divorce be varied by ordering that there be joint custody in the Petitioner and the Respondent with care and control to the Respondent;
	(3)	That the Respondent do have leave to take Christopher out of the jurisdiction after the lapse of 7 days from the date hereof, for the purpose of interview and examination in America with a view to entering him either at St. Paul's School, Concord, New Hampshire or Avon Old Farms School, Avon, Connecticut, upon the Respondent's undertaking to return him to the jurisdiction within two months of his departure from Hong Kong for that purpose (or such further period as the court or a judge may allow); such undertaking to be fortified by a bond to be executed by the Respondent and one surety in the sum of H.K.$60,000.00; the terms of the bond and the surety to be approved by the Registrar;
	(4)	That upon arrangements being made to the satisfaction of the court or a judge for the attendance of Christopher as a pupil at one of the said schools, the Respondent do have leave to take or send him out of the jurisdiction for that purpose;
	(5)	The Petitioner to have Christopher for one month's holiday in England once every year; the Respondent to pay one half of the cost of a return air passage (economy class) for that purpose; in addition, the Petitioner to have reasonable access to Christopher henceforward both in Hong Kong and America;
	(6)	The said children to remain in the custody of the Petitioner until the Respondent takes Christopher to America for interview and examination in the said schools; provided that the passport of the said Christopher be surrendered by the Petitioner to-morrow by 11 o'clock in the forenoon to the Registrar of the Supreme Court;
	(7)	Liberty to both parties to apply to the Full Court;
	(8)	There be no order as to costs of this appeal and that the Respondent do pay half of the costs incurred by the Petitioner in the court below; such costs to be taxed.

Representation:

Appellant (Respondent) in person.

A. Zimmern (Deacons) for Respondent (Petitioner)

(Judgment of the Court delivered by the President)