G, By His Next Friend Chan Lui Luna v. Bvr and Others
Read the full judgment text of CACV 165/2018 on BabelCite. This Court of Appeal judgment was delivered on 13 May 2020.
1. I agree with the judgment of Yuen JA.
Cited by 1 case · Cites 3 cases
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CACV 165/2018 [2020] HKCA 307 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 165 OF 2018 (ON APPEAL FROM HCMP NO 1803 OF 2014) __________________________
__________________________ BETWEEN
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___________________ JUDGMENT ___________________ Hon Kwan VP: 1.I agree with the judgment of Yuen JA. Hon Yuen JA: 2.This is an appeal by the mother (“the Mother”) of a boy (“G”), now aged 11 years, against the Judgment of Hon B Chu (“the judge”) given on 23 April 2018 (“the Judgment”) dismissing her application by summons filed on 29 April 2016 for an order that G ceases to be a ward of court. 3.G was first made a ward of court on 2 September 2014, and by a consent order made on 5 May 2015 (“the Consent order”), he continued to remain a ward. 4.1.The respondents to the appeal are:
4.2.According to the Mother, the identity of G’s father is unknown1. Background - Immigration status 5.The Mother originally came to Hong Kong from the Philippines in 2001 to work as a domestic helper, but overstayed after her employment terminated in 2004. Since then she has not been employed in Hong Kong, but has not returned to the Philippines. In February 2009, she was convicted of overstaying. 6.Two months later, in April 2009 G was born. He has remained in Hong Kong since then. 7.1.The Mother made a claim to be allowed to stay in Hong Kong as a torture claimant, but it was rejected in June 2012. She subsequently applied on behalf of herself and G for an order for non-refoulement, but their application was rejected in June 2015. 7.2.Since April 2009, the Mother and G have been on recognizance. As a result of the rejection of their non-refoulement claim, the immigration authority can remove them from Hong Kong, although it was common ground at the hearing before the judge2 that the Director of Immigration has a residual discretion under statute to rescind a removal order and to grant permission for a person to remain in Hong Kong3. 7.3.As the judge correctly stated, the legal position now is that the court cannot interfere if the immigration authority removes G from Hong Kong, but unless and until G is removed, the court is not absolved from its duty to deal with matters affecting his wardship4. - G’s situation 8.1.Returning to the factual background, as a result of concerns that PF had about G’s well-being the year after he was born, PF made an application in July 2014 as G’s next friend for him to be made a ward of court. 8.2.The application was supported by evidence that included allegations about the Mother’s lack of parenting skills, but as a result of the Consent order, it was not necessary for the allegations to be determined by the court. 9.The uncontroversial facts concerning G may be summarized as follows. 9.1.From the time of his birth in 2009 until July 2013, he was in the Mother’s custody. 9.2.In July 2013, PF arranged for him to be placed with temporary guardians for 12 days. The circumstances under which that placement took place are disputed, but as explained above, the disputed facts did not need to be determined by the court by reason of the Consent order. 9.3.In June 2014, the Mother was remanded in prison, and G (then aged 5) was sent to Po Leung Kuk. There, in August 2014, ISS connected him with a couple Mr & Mrs K. Mr K is Hong Kong Chinese and Mrs K is from the Philippines. They have children of their own. They visited G at the Po Leung Kuk and he got on well with them. 9.4.About 2 months later in October 2014, G started staying with the K family at weekends. 9.5.In February 2015, G started living full-time with Mr & Mrs K (“the foster parents”) and their children at home (“the local home”). Since then, he has been attending a government primary school near the local home, has taken the K family’s Chinese surname, and his preferred language is Chinese. Mr & Mrs K have been supporting him financially. Mrs K gave evidence before the judge that she and her husband would continue to care for G, whether by adoption or under the existing local home arrangement5. The judge was clearly impressed with the home that the family has provided G.
10.Meanwhile, the Mother was released from prison in August 2014 and has been living in different places as she was not satisfied with accommodation provided by ISS. 11.By the Consent order in May 2015, the Mother consented to G remaining a ward of court. She was legally represented at the time. The terms of the order included the following:
Events after the consent order 12.Unfortunately the Mother failed to attend the majority of parental counseling sessions11 and stopped attending them altogether the next year12 (2016). This was despite the fact that in April that year, she had applied for an order that G ceases to be a ward of court. 13.1.Pending the hearing of her application, the Mother also failed to attend family art therapy sessions with G13. Her repeated absences caused G to be upset such that the therapist recommended that the family art therapy sessions be discontinued, with G to continue to attend individual art therapy sessions. 13.2.In the course of the art therapy sessions, G complained to the therapist that he did not like it when, during the Mother’s unsupervised access, she took him to a smoky flat where she played cards for money14. 13.3.At one stage the Mother asked for access to G to be put on hold, the reason she gave being that she was dissatisfied with the food and travel assistance provided to her by ISS15. 13.4.She also cancelled access to G at one point, believing that in that way, ISS would not be able to report to the court about her16. Mother’s plans for G 14.As for the Mother’s application that G ceases to be a ward, she first filed an affidavit17 on 29 April 2016, in which she set out short-term and long-term arrangements for G. 14.1.The short-term arrangement involved ISS providing her with accommodation near G’s school18, and unsupervised access to him on weekdays and one day at the weekend. 14.2.The long-term arrangement was as follows:
14.3.Subsequently however, in a letter dated 3 November 2017, her solicitors set out a different arrangement, as follows:
15.1.This led to correspondence in which the Mother was asked to address the following matters (“4 Matters”):
15.2.Pausing here, it would be noted in relation to (iii) that G has throughout been studying at a local primary school and his preferred language is Chinese; and in relation to (iv), that he has been receiving regular psychological therapy, he has lived in Hong Kong since birth, and he has been raised by a local family since he was 5 years old. 15.3.Thereafter the Mother filed another affidavit on 11 December 2017. After first saying the following:
she went on to say, in summary:
15.4.The Mother made a further affidavit on 4 January 2018. She indicated that she would borrow $10,000 from friends in Hong Kong, but could not say “what funds are or will be available as I have no idea when [G] and I will be repatriated to the Philippines”. 15.5.Despite queries made by the other parties about F, she did not provide any evidence from him as to the assistance that she hoped to get from him. She declined to provide his contact details on grounds of privacy. 15.6.As for G’s education, she considered it premature to say which school she intended to enrol G in, as she would need to settle on where they would live before finding a school in the area. 15.7.Essentially the emphasis of the Mother’s case was as follows:
The judge’s Judgment 16.1.The application was heard over 5 days. All parties were separately represented by counsel. The DSW supported the Mother’s application, whereas PF and ISS considered that it would not be in G’s best interests to cease to be a ward. 16.2.The Mother gave oral evidence23, and the judge also met with G and listened to his views. 16.3.On 23 April 2018, the judge handed down a comprehensive 68-page Judgment. After setting out the background of the case, an agreed Scott Schedule of issues, the relevant legal principles and the facts in considerable detail, the judge discussed G’s views, his physical, emotional and educational needs, the effect on him of any change in his circumstances, his age, maturity, sex, social and cultural background, his mother’s attitude to him and to the responsibilities of parenthood, the capability of his mother and of his foster parents of meeting his needs, the practical difficulty and expense of keeping up his contact with his mother, and his mother’s plan for him if he were to be dewarded. 16.4.Having considered all those circumstances and expressly noting that the Mother was free to make a fresh application to deward G in the future if and when she obtains further detailed information regarding the 4 Matters24, the judge concluded that it would be in G’s best interests for him to remain a ward of court at the present time. Appeal 17.1.The Mother filed a Notice of Appeal on 18 May 2018. Although she was no longer legally represented, she presumably had the assistance of someone with legal knowledge in drafting the grounds as they were drafted in legal language, and were comprehensive and detailed. 17.2.The Mother did not file any skeleton submissions but addressed this court orally at the hearing of the appeal. Essentially she submitted that it was because she was poor that G was not “given back” to her, and that it was not her fault that because she had no money, G would not be able to go to school in the Philippines. With respect to the 4 Matters, she said she would not be able to know anything further about them until she returned to the Philippines. She knew that G would like to stay in Hong Kong and not go to the Philippines, but she says that was because he was better provided for here. 17.3.Detailed written submissions were lodged by counsel for PF, DSW and ISS. The DSW’s position at the appeal was similar to that of PF and ISS, in other words, that the Judgment should be upheld. Discussion 18.The grounds of appeal in the Notice of Appeal can be divided into 5 broad categories:
19.The 1st category of grounds pertain to wardship jurisdiction. 20.1.As far this category is concerned, it is not the Mother’s case that G should not have been made a ward of court back in 2014 or in 2015 when the Consent order was made. The ground of appeal was that he should no longer continue to be a ward since no real imminent or immediate risk of abuse, neglect, violence, danger, harm or total incapacity to look after G had been established against her. 20.2.However, wardship jurisdiction is not limited to those situations. As Hartmann JA held in M v Y32, “there is admittedly no stated limit to the jurisdiction” because “each and every case is unique”. 20.3.Although his lordship held in that case that the “underlying common denominator ... is the imminent or immediate need to afford protection for a child when that protection may not readily be derived from any other source”, this court33 subsequently held in CLP v CSN 34 that M v Y should not be regarded as
20.4.Indeed, this jurisdictional test of “real need for wardship in the interest of the child” was common ground between all counsel appearing before the judge who discussed it in §§30-31 of the Judgment. 20.5.Therefore, there is no merit in this ground of appeal insofar as it seeks to resurrect the requirement of “imminent or immediate need” before jurisdiction could be found35, or to confine it to cases of “abuse, and/or neglect and/or violence”36, “danger”37, “harm”38 or “total incapacity”39. 21.The 2nd category of grounds of appeal was as follows:
22.1.It is obvious from the way this ground was formulated that it stems from a perception that abuse and/or neglect and/or violence would be required before wardship could be ordered or continued. As discussed above, that perception is misconceived in law, and there is no merit in this ground either. 22.2.In any event, the application on the part of the Mother not only signaled a change from her previous agreement to wardship. Her plans for G also involved a substantial change to the child’s life so far (in particular, moving permanently to a country where he had never been before). The judge cannot be faulted for requiring the Mother to provide a more solid plan for the child’s future before such a drastic step would be taken, and the door was expressly left open for the Mother to make a similar application if and when she did have more details and information on the material matters40. 23.As for the 3rd category of grounds, the complaints first pertained to the weight given by the judge to one factor or another, or in other words, the judge’s evaluation of the facts. 24.1.In ZJW v SY41, this court42 reviewed the approach that should be taken by appellate courts in appeals against various categories of findings of fact:
24.2.In respect of (2) findings based on evaluation of facts, the approach was set out in Assicurazioni Generali SpA v Arab Insurance Group (BSC)43, where Clarke LJ held44:
24.3.In other words, if an appellant wishes to upset the judge’s evaluation of facts, she must demonstrate that the judge had misunderstood a material fact, or had failed to take a relevant matter into account, or had taken an irrelevant matter into account, or was plainly wrong. 25.1.In the present case, the grounds of appeal in this category did not suggest any misunderstanding of any material fact. However, it was suggested in 2 specific grounds that the judge had failed to consider:
25.2.Dealing first with (i), it is clear that the judge was aware of the Mother’s background, having expressly said “I accept that the Mother lacks education and is from a different cultural background”47 and that her parenting skill “has to be seen in light of her background and culture”48. 25.3.As for (ii), that the judge failed to consider the Mother’s stress and anxiety caused by the separation, financial limitation and restriction in access and accommodation provided by ISS, the judge had expressly noted the following:
25.4.Apart from these specific grounds (i) and (ii), the grounds of appeal in this category did not suggest that the judge had failed to take any relevant matter into account. 25.5.Finally, it cannot be said that the judge was plainly wrong. It is well-established that in the absence of any express ranking of factors, the relative weight to be given to each factor depends on the facts of the case53, and the advantage of the first instance judge in seeing the witnesses applies not only to credibility and findings of primary fact, but also to the judge’s evaluation of the facts54. In the present case, it is clear from the Judgment that the judge had undertaken a comprehensive review of all relevant matters, including the Mother’s evidence and her interview with G, and had arrived at a well-reasoned conclusion. There is no room for this court to interfere with nuanced matters of weight. 26.The 4th category of grounds pertained to what the appellant considered as the judge’s failure to respect G’s right to live with the Mother as a family. 27.1.Although the argument of the Mother’s right to live with G was raised in the Scott Schedule of issues, it was not pursued at the hearing55. It was correct for the Mother’s leading counsel56 not to pursue that argument, for it is well-established as a matter of law that the primary concern in wardship is not to ensure the rights of parents, but to ensure the welfare of the child57. 27.2.The judge expressly stated that she bore in mind Article 9.1 of the United Nations Convention on the Rights of the Child that “a child shall not be separated from his ... parents against their will, except when competent authorities ... determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child”58. The judge’s sensitivity to the parent-child relationship can be seen from the fact that before setting out her conclusion at the end of a lengthy judgment59, the judge specifically reiterated that she was “fully aware that the Mother is the birth mother of G ...”60. 27.3.The judge also recognized that in considering what is in the best interests of the child, his right to maintain personal relations and direct contact with his parents on a regular basis is one of the factors to be taken into account61. In this regard, Mrs K had testified that if the Mother returned to the Philippines but G was allowed to stay in Hong Kong, she (Mrs K) was prepared to take G to the Philippines once or twice a year to see the Mother62. Her evidence was accepted by the judge, who in any event indicated that if necessary, that could be made part of the court’s order. 27.4.In light of the above, there is no merit in the grounds that the judge had failed to respect G’s right to live with the Mother. The judge was fully aware of the parent-child relationship but decided after a careful consideration of many factors, that it would not be in his best interests to be dewarded for the Mother to bring him to the Philippines when his future there was uncertain. 28.This leads to the 5th category of grounds that the judge erred in placing more importance on the impact on G’s education than on the Mother’s practical difficulties and his cultural identity63. 29.1.It is suggested that the judge failed to respect the practical needs of the Mother to find a job to ensure G’s basic needs (food, clothing and a place to live) before education, emotions and feelings are concerned. Emphasis was also put on G’s “immediate need” to find out about his cultural identity. 29.2.In essence this category of grounds is also based on the judge’s evaluation process, which has been discussed earlier in this Judgment. The judge was required to assess whether it was in the best interests of this child, then aged 9, to be taken by a parent, who had no interest in improving her parenting skills, to a new environment which was unknown to him, where he did not know any other people, did not understand the language, and where the future was uncertain, to the extent that he might not even be able to go to school for 1-2 years. The judge found that it was not in the ward’s best interests, and it cannot be said that her evaluation was plainly wrong. Order 30.For the reasons given above, this appeal should be dismissed. In the circumstances, there should be no order as to costs. Hon Au JA: 31.I agree with the judgment of Yuen JA.
Mr Shaphan Marwah, instructed by Tanner De Witt, for the Plaintiff The 1st Defendant appeared in person Ms Carmen Poon, SGC of the Department of Justice, for the 2nd Defendant Ms Frances Irving, instructed by Fairbairn Catley Low & Kong, for the 3rd Defendant 1 The Mother’s 5th affidavit, §20. 2 At which the Mother was represented by leading counsel. 3 Judgment, §48. 4 Judgment, §49 following R (Anton) v Secretary of State for the Home Department: Re Anton [2005] 2 FLR 818, §34. 5 Judgment, §178. 6 Judgment, §179. 7 Subsequently unsupervised access was approved. 8 Or other approved places. 9 As recommended in a clinical psychologist’s report. 10 This took the form of family art therapy sessions and individual art therapy sessions. 11 Judgment, §111. 12 Judgment, §111. 13 Judgment, §120. 14 Judgment, §§130-131, and see ISS Nov 2017 report §§9-10. 15 Judgment, §120. 16 Judgment, §138. 17 5th affidavit. 18 In the Mid-levels district of Hong Kong Island. 19 §4. 20 §11. 21 §12. 22 §4. 23 Which the judge found was not truthful: Judgment §218. 24 Judgment, §217. 25 Grounds 1, 2, 3, 7, 20, 23. 26 Grounds 4, 25. 27 Grounds 5, 8, 12, 14, 15, 17, 19, 24, 28, 30. 28 Ground 9. 29 Ground 10. 30 Grounds 6, 18, 22, 29. 31 Grounds 11, 13, 16, 21, 26 and 27. 32 [2009] 5 HKLRD 597, §4. 33 Lam VP, with whom Kwan JJA agreed. 34 [2016] 5 HKLRD 530, §1.2. 35 Grounds 1 and 3. 36 Ground 2. 37 Ground 20. 38 Ground 23. 39 Ground 7. 40 Judgment, §217. 41 CACV10/2017, 1 Dec 2017, §33. 42 Yuen, Kwan and Poon JJA. 43 [2003] 1 WLR 577. 44 §16. 45 Ground 9. 46 Ground 10. 47 Judgment, §140. 48 Judgment, §218. 49 Judgment, §200. 50 Judgment, §§138-9. 51 Judgment, §162. 52 Judgment, §126. 53 Piglowska v Piglowski [1999] WLR 1360, 1370H. 54 Piglowska, 1372D. 55 Judgment, §33. 56 Mr Paul Shieh SC with Ms Monica Chow. 57 In re K (Infants) (1962) 3 WLR 752, cited in Re SC [1962] HKLR 499 (Full Court), 508. 58 Judgment, §33. 59 Judgment, §219. 60 Judgment, §218. 61 Judgment, §27(j). 62 Judgment, §210. 63 Grounds 11, 13, 16, 21, 26 and 27. |
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