W, K M v. K,J

FCMP 92 / 2018

[2020] HKFC 47

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 92 OF 2018

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BETWEEN

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

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1.This is the hearing of the Applicant’s (Mother) application by way of a Summons dated 15 May 2018 for interim custody, care and control of a boy (Child) born out of her relationship with the Respondent (Father).

Background

2.The Mother is 40 years old. She works as a legal consultant with flexible working hours.  She has a daughter, K, from a previous relationship.  K is now 20 years old and is studying law.

3.The Father is 41 years old. He is a businessman, also with flexible working hours.

4.The parties met in 2012 and soon became intimate.  The Mother discovered that she was pregnant in early 2014 and the Child was born on 1 January 2015 and is now 5 years old.

5.There is no dispute that the Child started to live with the Father shortly after his birth.  However, there are numerous factual disputes as to what happened between the parents.

6.The Mother’s case is that she was in a relationship with the Father until the end of 2017.  During that period, the Father strung her along and made her believe that they were going to get married.  Their wedding plans only came to a halt because the Father and his family were involved in litigation over the probate of his grandmother’s (the Deceased) estate.  That was why she agreed to the Child living with the Father during the transitional period.  Although she was not living with the Child, she was heavily involved in his care, made all the important decisions and had unrestricted access.  She says that by the time he started schooling in 2017, the Child was spending most of his time with her, either in her home, the Father’s home or outside as a family. In about May 2017, the Mother began to suspect that the Father had another relationship.  After she confronted him with her suspicions in July or August 2017, the Father began to restrict her access to the Child.  By Easter 2018, the Father terminated all access and excluded the Mother from the decision making process with regard to the Child.  The Mother also noticed that there were changes in the Child’s behaviour.  For example, he started to refer to an auntie, he was reluctant to be picked up for access and said that he did not like his mother.  The Mother subsequently discovered that the Father had secretly married his present wife (the Wife).

7.The Father’s case is that he had broken up with the Mother even before she discovered that she was pregnant.  The Mother did not want the responsibility of having another child and wanted to terminate the pregnancy.  He wanted the Child but there were never any plans for him and the Mother to be married.  The Mother did not want to have anything to do with the Child.  That was why there was an agreement for the Child to live with him and for the Father to be solely responsible for the Child’s upbringing.  Although he offered unrestricted access to the Mother, she rarely saw the Child. He says that the Mother’s sudden wish to be involved in the Child’s upbringing is financially motivated. She has already cheated him out of a property in Wanchai (the Wanchai Property) and she wants him to transfer two further properties to her, namely his present residence and another property in the New Territories.  These allegations are denied by the Mother.

Events Leading up to the Present Proceedings

8.Again, there are many disputes of facts as to what happened shortly before the commencement of these proceedings.  There are cross allegations of the other party “kidnapping” the Child and reports were made to the police.

9.The Mother says that all access was terminated by Easter 2018.  With the assistance of the Father’s god-uncle, she picked up the Child on 21 April 2018.  There is no dispute that the Child suffers from serious allergies. Apart from food allergies, the Child is also allergic to dust mites.  The Mother had arranged for the Child to undergo immunotherapy at the Hong Kong Sanatorium on 23 April with the Father’s knowledge and consent.  This is denied by the Father. The Mother wanted the Child to stay with her for a longer period, but her request was rejected by the Father, who subsequently reported the matter to the police.  On 28 April 2018, the Father asked to see the Child, to which the Mother agreed.  The Father drove them to the Science Park.  Whilst the Child was playing on his scooter, the Father asked the Mother to fetch something from the car.  When she returned, she discovered to her horror that the Child had already been taken away.  She went to the Father’s residence to look for the Child.  This resulted in another report to the police.

10.The Father says that not only did the Mother refuse to return the Child to him, she had moved out of her home and he did not know the whereabouts of the Child.  He explained that he did not plan to take the Child away from the Science Park.  It was the Child who asked to leave immediately.

11.There is no dispute that until the commencement of these proceedings, the Mother had no access to the Child after the above mentioned incident.

12.On 15 May 2018, the Mother took out an Originating Summons for custody, care and control of the Child.  On the same day, she also took out the Summons for interim custody, care and control.

13.15 June 2018, the Court ordered that the Mother be granted interim interim access every Friday 10 am to Saturday 6 pm.

14.On 24 July 2018, the Father took out a summons for custody, care and control on 24 July 2018.

15.On4 October 2018, the interim interim access order was varied to every Thursday 10 am to Saturday 6 pm.

Relevant Legal Principles

16.Section 3 of the Guardianship of Minors Ordinance Cap 13 provides as follows:

“(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 views 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; and

(ii)  shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father;

(b)  except where paragraph (c) applies, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other;

(c)  where the minor is illegitimate-

(i)  a mother shall have the same rights and authority as she would have by virtue of paragraph (b) if the minor were legitimate;

(ii)  a father shall only have such rights and authority, if any, as may have been ordered by a court on an application brought by the father under paragraph (d);

(d)  the Court of First Instance or a judge of the District Court may, on application, where it is satisfied that the applicant is the father of an illegitimate child, order that the applicant shall have some or all of the rights and authority that the law would allow him as father if the minor were legitimate.”

17.Under section 4 of the same Ordinance, an agreement for a man or woman to give up in whole or in part, in relation to any child of his or hers, the rights and authority referred to in section 3 shall be unenforceable, except that an agreement made between husband and wife which is to operate only during their separation while married may, in relation to a child of theirs, provide for either of them to do so; but no such agreement between husband and wife shall be enforced by any Court if the Court is of the opinion that it will not be for the benefit of the child to give effect to it.

18.Parental alienation is exceptionally harmful to children and can be seen as a kind of emotional abuse and thus in the best interests of the child, should be rectified immediately (see PFH v CMS, unrep. (FCMC 9655 of 2005) (B. Chu J, 17 October 2007 at paragraph 212.

19.In Re H (Childern) [2014] EWCA Civ 733, the mother sought leave to appeal against Lady Justice Parker’s decision of reversing residence following the mother’s manipulation of the children in opposition to contact but the leave application was dismissed.  When referring to Lady Justice Parker’s decision, the English Court of Appeal said at paragraph 74:

“74. In regard parental manipulation of children, of which I distressingly see an enormous amount, as exceptionally harmful. It distorts the relationship of the child not only with the parent but with the outside world. Children who are suborned into flouting court orders are given extremely damaging messages about the extent to which authority can be disregarded and given the impression that compliance with adult expectations is optional. Bearing in mind the documented history with this mother’s inability to control these children, their relationship with one another and wholly inappropriate empowerment, it strikes me as highly damaging in this case. I am disappointed that the professionals in this case are unable truly to understand this message. The recent decision of the Court of Appeal, Re M (Children) [2013] EWCA Civ 1147 requires to be read by all practitioners in this field.

Lady Justice Macur gave firm and clear guidance about the importance of contact. Parents who obstruct a relationship with the other parent are inflicting untold damage on their children and it is, in my view, about time that professionals truly understood this”

The Evidence

20.The parties have put forward numerous cross allegations against each other.  The Father’s evidence is heavily criticized by the Mother.  She says that the Father’s evidence is littered with self-contradictions, inconsistencies with contemporaneous documents (including the documents that the Father himself has produced).  Some of the most obvious examples are set out below.

21.The Mother alleges that the Father proposed to her in early 2014 just before she discovered that she was pregnant and gave her an engagement ring.  This is denied by the Father.  However, the Mother was able to produce the photograph of the alleged engagement ring [A/94/para 12; B1/193];

22.The Father denied that there were ever any plans for him to marry the Mother.  Yet the Mother was able to produce a series of emails in respect of booking the Peninsula Hotel as their wedding venue [A/95/para15; B1/198-211/WKM2-5].  When he was confronted with these emails, he stated that he only forwarded one of the emails to the Mother to please the maternal grandmother.  However, this explanation does not sit well with his WhatsApp messages to the Mother.  For example, the Father alleges that he had broken up with the Mother before March/April 2014, however, on 21 May 2015, the Father suggested having another child with the Mother to provide the Child with a sibling.  On 11 May 2015, whilst the Father was in hospital for a check up, he sent a voice message to the Mother telling her that he has requested for his room to be kept confidential and that the Mother should identify herself as Mrs. K, his wife, when she visited him.  On 5 November 2016, the Father sent a voice message to the Mother that he wanted to go to live in Iceland with her upon his retirement.  In August 2017, the Father sent a video of himself still wearing the necklace with the Mother’s initial [A/93-97/ paras.11,12,15,1719].

23.The Father asserted that he was the sole person responsible for the upbringing of the Child.  The Mother was simply disinterested and took no part.  He produced a letter from a Dr. Lim to say that he alone had taken the Child to attend medical treatment and appeared to be the primary carer.  The Father alleged that the Mother only became interested in the Child in 2018 for financial gain.  However, the Mother was able to produce receipts for treatments that she attended with the Child.  When confronted with this, the Father stated that he was the one who took the Child to those treatments and paid for them.  He had only given the receipts to the Mother for tax deduction.  The Mother was able to produce a report from Professor Lee Tak Hong of the Hong Kong Sanatorium which demonstrated that the Child had been attending the Hong Kong Sanatorium in respect of his allergies since 2015, it was the Mother who accompanied the Child most of the time, it was the Mother who ordered the medicines.  The report also set out the dates on which the allergies were discovered. [A/116/para.61] The Mother was also able to produce an email dated November 2016 with Dr. Lam Lai Kun in respect of the Child’s decaying nail condition [A/117/para. 62].  In addition, she produced attendance records of the Hong Kong Sanatorium signed by her [A/118/para.63(i)].  Further, the Mother produced credit statements of her expenditure on the Child [A118/ para.63].  Moreover, the Mother was able to produce various WhatsApp messages where she informed and reminded the Father about the Child’s allergies and the discussions about the same [A/ 115-116/para.59].

24.The Father initially asserted that he was not aware of the Child being taken to the Hong Kong Sanatorium for immunotherapy.  However, when the Mother produced the WhatsApp messages between them, he admitted to Dr. Lora Lee, the single joint expert (SJE) that he knew about the proposed treatment but had never consented to the same [A/168/para.102].

25.The Father denied that the Mother was in any way involved in the Child’s education.  However, the Mother was able to produce of all the applications she made for the Child.  The Father then stated that he had only enlisted the Mother’s help in filling in the forms because he was no proficient in English. This does not explain the WhatsApp messages between the Mother and Father about the Child’s education, emails between the Mother and the schools [A/106/para.43].

26.The Father alleged that until shortly before these proceedings, the Mother was not interested in having a relationship with the Child.  When the SJE visited the Mother’s home, she found many of the Child’s toys and books.  The Child confirmed that these toys and books were old and that it was the Mother who read to him [A/170/paras.118, 123].

27.The Father alleged that the Child was very distressed after the alleged “kidnapping” incident.  His Wife stated in her Affirmation that the head teacher of the Child’s school, Ms. Wong mentioned the assistance of a school counsellor [A/81/para.16].  However, according to a letter dated 19 June 2018, Ms. Wong confirmed that there was no in-house school counsellor.  In his 1st Affirmation and at the hearing on 1 June 2018, the Father (through his Counsel) stated that Ms. Angela Chung, the psychologist he consulted advised that the Child should not see the Mother. Ms. Chung’s report was produced. There was no such recommendation [B1/96-100].

28.Although the Father said on numerous occasions that he encourages more contact between the Mother and the Child, he refused to grant her additional access pending the hearing of this application and even refused the Mother to spend any time with the Child on Mother’s Day.  He withdrew the Child from his previous school and gave the Child an English new name without any reference to the Mother.

29.The Father contends that the only reason for the Mother’s applications is financial gain. It is noted that the Mother has not included any financial claim in her application.  The assets which appear to be in dispute include a $600,000 cheque given to the Mother by the paternal grandmother as a wedding gift.  Although the reasons are in dispute, it was agreed that the cheque has been given by the Mother to the Father even before the deterioration of the relationship.  The Father alleged that the Mother had misled him into transferring the Wanchai property to her.  He further alleged that the Mother has demanded the transfer of his current residence to her.  Both of these properties are the subject matter of the Probate Action mentioned above.  Although the Father has not been named as a defendant in the Probate proceedings, he was alleged to have been involved in the disposition of the assets of the estate.  At the time of the hearing for the appointment of an administrator pendent lite, the Wanchai property was in the sole name of the Deceased.  The property used to be unencumbered.  However, the equity value of this property has been diminished by a mortgage dated 1 November 2013 to secure borrowings of the paternal grandfather.  It is not known when and how the Wanchai Property was transferred to the Father and then to the Mother.  It is also unclear whether this property had any value whatsoever at the time of the transfer.  On 29 August 2016, the High Court indicated that it was concerned with the questions of whether the Deceased might have during her final years been the victim of financial abuse and whether her assets which have been disposed of were avoidable on the grounds of want of mental capacity or undue influence [B2/446/para46].  The Court went on to appoint a well-known solicitor as administrator pendent lite of the Estate.  Those proceedings are still ongoing.  It is not even clear whether the Father would have any interests in these properties.

30.Because of the interim nature of these proceedings and the lack of cross-examination, it is impossible for the Court to make any findings of fact.  Suffice it to say that the Father’s evidence raises more questions than answers.  No doubt, this will be the subject of rigorous cross-examination at trial.

Expert Evidence

The SJE

31.Because of the allegations of parental alienation, the Court asked for the appointment of the SJE.  The Mother argues that the SJE report clearly shows that the Father has been denigrating the Mother in front of the Child with the intention of completely cutting him off from the Mother.

32.The Mother submitted that there is clear evidence of alienation and the Father’s intention to completely exclude her from the Child’s life:

(a)  In paragraph 11 of her report, the SJE stated that “[The Father] said that after the incident in April, he told [the Child] he would not need to return to [the Mother];

(b)  The Father deposed in his Affirmation that he had been advised by Ms. Angela Chung, a clinical psychologist not to let the Child see the Mother. According to paragraph 17 of the SJE report, the conclusion of the report is that the Child’s change of emotion was a normal stress reaction which is proportional to his age and the stress level of the recent event (in the report, it is not clear if Ms. Hung is aware of the incident on 29th April). There is no suggestion of the Child not seeing the Mother but that if change is anticipated, he should be informed and prepared;

(c)  There is no dispute that the Father applied for a China re-entry permit for the Child and took the Child out of the jurisdiction without any reference to the Mother. According to paragraph 106 of the SJE report, when the Father was asked about this, he said that he simply told the office that the Mother was not available at the time and he was allowed to apply for the visa;

(d)  According to paragraphs 131, 168 of the report, the Child admitted to the SJE that the Father had told him that the Mother was a “bad person” because “she had taken his money”;

(e)  In paragraph 191 of the report, the SJE stated:

“This graph relates to how [the Child] experiences each parent in supporting his relationship with the other parent. His answers were consistent with what he told me during our interviews, that [the Father] had been telling him or letting him know of his opinion of [the Mother] being a bad person, as she took his money. On the other hand, [the Mother] scored higher on being supportive, as she recently purchased an iPad for [the Child] to FaceTime [the Father];

(f)  The Father and the Wife alleged that access was terminated because the Child was very distressed after the alleged “kidnap” incident. However, according to paragraph 199 of the SJE report,

“When asked about both parents, [the Child] did not display any unusual fear, except for the fear of having nightmares, which is common among children of his age”

33.Both parties’ legal representatives have a completely different interpretation of the SJE’s report. The Mother submitted that the SJE found evidence of parental alienation whilst the Father submitted that there was no such finding, The SJE’s conclusions are as follows:

“200.  On the other hand, it seems to me that [the Father’s preoccupation dominates his fears pf losing [the Child], so he needs do everything to reassure himself that [the Child] is safe from [the Mother]. This message is clear to [the Child], as he openly mentioned it multiple times during the interviews. Based on his developmental age, it is normal for him to take sides and want to help the favourable parent, but that will hinder his relationship with [the Mother] and her extended family …

205.  From my observation of [the Child’s] previous school and the clinical psychologist, [the Child’s] development is in alignment for his age and there is no child abuse or substance abuse but some of [the Father’s] behaviour is obviously sabotaging [the Child’s relationship with [the Mother] …

207.  Despite the fact that [the Child] was aware that [the Mother] was in another room and he obviously wanted to see her, he said to me that he was sacred of her. However, he was the one who opened the door to see [the Mother], but said again that he was scared of her while leading her to the playoff. It was as if he felt a need to tell me what he thinks I should know, except his behaviour indicated otherwise.

208.  I have no doubt of [the Father’s] involvement in [the Child’s] life, but at the same time, it is clear that he is exposing [the Child] to his negative attitude toward [the Mother] explicitly and also withholding information from [the Mother]. [The Mother seemed better able to compart mentalism the parenting from other contentious issues in front of [the Child]. Given the level of resentment from [the Father], it is clear that his level of compliance will be minimal as he does not see the reason to co-parent with [the Mother] …

209.  Derogation of the other parent can lead to the child viewing the other parent in a negative light ad rejecting by resisting contact, which could then result in the child’s alienation. Gatekeeping and parental alienation are a continuum that occurs in varying degrees. There is responsible gatekeeping behaviour when there is a generous concern of the other person’s capacity, and there is restrictive gatekeeping behaviour that only serves to restrict access to the child …

210.  The question is, if [the Father] was telling the truth and [the Mother] had been an absent mother and was only using [the Child] for financial gain, his gatekeeping behaviour could be justified as reactive gatekeeping. On the other hand, if he was in a relationship with [the Mother] but things did not work out so he married [the Wife] and decided to replace [the Mother] with [the Wife], his behaviour would be pointing towards parental alienation, as his intention would be simply to destroy the relationship between [the Mother] and [the Child] without any justification;

211.  I do not think that both fear and lack of understanding play a role in [the Father’s] behaviour. He seems to believe that [the Mother] had abandoned [the Child] from birth, and hence he does not need to consult her in any matter related to [the Child]. He also seems to focus on now rather than later. It should be about [the Child] having a healthy relationship with both mothers in his life, instead of the two women fighting over custody …

219.  It seems naive to expect [the Mother] to want to communicate with [the Wife]. From what I have seen over the last few weeks, the parents do not seem to be able to exchange information without involving their lawyers or the school. I understand that [the Father] cares deeply about [the Child’s] education, but if he had offered the information to [the Mother], she would not have needed to write to the school and claim her rights as [the Child’s] biological mother, who should be put on record for school matters …

222.  remarriage…can trigger alienation as the new couple attempts to unite against a common enemy and make room for the stepparent …

226.  [The Child] seems to express his unreasonable negative beliefs about [the Mother] freely and persistently (she took [the Father’s] money which are disproportionate to his personal experience with [the Mother] as a mother. This level of denigration of [the Mother] was clearly the result of [the Father’s] negative comments about [the Mother], but could be [the Child’s own contribution to the vilification of [the Mother], as she often does not respond to the accusations and his need to protect the father …

229.  If what [the Father] said was true, his response could be seen as protective gatekeeping behaviour, if what he indicated was fabricated, then his behaviour would be considered on the spectrum of parental alienation ...”

The Social Investigation Reports

34.Similar to the SJE’s findings, it was evident from the Social Investigation reports that despite the Child’s persistent allegation that the Mother is a bad person and that he does not want to see the Mother, the Child in fact enjoys his time with the Mother and has a good relationship with her.  The Social Investigation Officer recommended that interim custody be granted to the Mother.  It was also recommended that the Child should stay with the Mother from 8 pm on Saturdays to 1:35 pm on Wednesdays.  Currently, the Mother has interim interim access every Thursday to Saturday. According to the 2nd Social Investigation Report, the Child has adjusted well to this arrangement.  The recommendation simply means that the Child will have one further day with the Mother.

Custody

35.Since the Child was born out of wedlock and is illegitimate, pursuant to section 3(1)(c) of the Guardianship of Minors Ordinance, unless and until the Court makes an order under section 3(1)(c)(ii) and 3(1)(d), the Mother is the sole custodian of the Child.  The Court has not made any such order.  For the avoidance of doubt, the Mother already has sole custody of the Child.  There is no need for the Mother to apply for custody.

36.Further, there is no basis for the Father to appoint the Wife as the Child’s guardian.  This Court cannot see how the requirements for the appointment of a guardian under the Ordinance can be satisfied in this case.

Care and Control

37.Although the Father does not accept that there is parental alienation, it appears that the SJE found that the Father has been denigrating the Mother openly in front of the Child.  There is absolutely no justification for such behaviour.  No form of gatekeeping would justify the complete destruction of the Child’s relationship with his Mother.  The Mother is part of the Child’s genetic make-up.  Telling the Child that the Mother is a bad person would cause untold damage to him psychologically and emotionally.  According to the Father, the dispute between him and the Mother is financial.  It is impossible for a Child of such tender years to understand the dispute.  In any event, it is wholly inappropriate for any child to be involved in adult disputes to serve the parent’s own purposes.  Access is often described as the right of the child, rather than the right of the parents.  No matter what happened between the parents, the child is entitled to have contact with and be loved by both parents.

38.Further, the Father appears to be confused about parental alienation behaviour and parental alienation syndrome.

39.The Court understands that there are many cross allegations in respect of the quality of care rendered by each parent.  The Court is not on a quest for the perfect parent.  Its role is to ensure that the arrangements for the Child are in his best interests.  Whatever her shortcomings are, the Mother appears to be able to compartmentalize the disputes between adults and to facilitate access with the Father.  Allowing the denigration to continue is wholly untenable.

40.The Court understands that the Father loves the Child deeply and the Child has a very close relationship with the Wife. According to the reports, the Child is cheerful and well cared for.  However, there are already signs that he has been disturbed by the dispute between his parents.  Although he has a good relationship with the Mother, he keeps repeating that he does not like her.  When he is interviewed for reports, he would volunteer his dislike of the Mother unprompted, leading to the suspicion that he has been coached.  He finds the dispute between his parents annoying.  He is acting out by hitting the Mother and maternal grandmother.

41.The Court also understands that the Father now has a child with his Wife and the Child should be given an opportunity to build a relationship with his half sibling.  At the same time, the Father’s child with his Wife is not the Child’s only half sibling.  The Child should also be able to continue his relationship with K.

42.Although the Social Investigation Officer has recommended shared care and control, it is unfeasible to force such an arrangement on unwilling parties.  It is clear from all the reports that the parents have difficulty communicating with each other.  According to the 2nd Social Investigation Report, the Father often blocks the Mother’s communications with him.

43.In all the circumstances of this case, the arrangement that serves the best interests of the Child is for interim care and control to be given to the Mother.  The Child shall stay with the Mother from 8 pm on Saturdays to 1:35 pm on Wednesdays.  In other words, the Father shall have access to the Child from 1:35 pm on Wednesdays to 8 pm on Saturdays.

44.Previously the pick up point was outside the Kwun Tong MTR station.  The Social Investigation Officer has recommended the hand over point to be in Tat Chi Road.  However, in view of the recent virus scare, it would be better if the pick up point could be at the lobby of the Mother’s residence.

45.Accordingly, I make the following orders:

(1)  Interim care and control to the Mother;

(2)  The Father to have access to the Child every Wednesday at 1:35 pm to Saturday 8 pm;

(3)  The pick up point for access shall be at the lobby of the Mother’s residence.

(4)  There shall be an order nisi that there be no order as to costs.

Applicant:  W, K M (Represented by Mr. Eric Leung instructed by M/S Chaine Chow & Barbara Hung)

Respondent: K, J (Represented by Mr. G. Surman and Ms. Jacqueline K.K. Chan instructed by M/S Lo, Wong & Tsui)