Mt v. Hyc

FCMC 12163/2012

[2020] HKFC 55

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 12163 OF 2012

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Coram:  Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)

Date of Hearing:  20 January 2020

Date of Ruling:  10 March 2020

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RULING

(Schooling)

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Introduction

1.The issue that I am now asked to determine is a very narrow one – should C, who is now 11 years of age, go to the Chinese International School (CIS) or should he remain at the Hong Kong International School (HKIS)? The Respondent mother asks that he go to CIS, whereas the Petitioner father asks that he remain at HKIS. C has been offered a place at CIS and he can also remain at HKIS.

2.In order to resolve this issue the mother initially filed a generic summons dated the 14 March 2019 in which she asked for a “school discussion and decision for the child, C”. The father subsequently filed a further summons dated the 9 September 2019, in which he asked that C be immediately returned to HKIS. At that stage the child had begun the new term at CIS without first obtaining either the father’s agreement or court order. Following an urgent court hearing the child subsequently returned to HKIS, albeit reluctantly. The father then issued a summons on the 6 December 2019 seeking inter alia sole custody and care and control of C. He also asked that L be appointed to provide counselling for him. On the 9 December 2019 the mother also issued a further summons in which she also seeks sole custody and care and control of C and other directions in relation to counselling, educational trips and mediation. These issues will be dealt with later. In the meantime, the choice of school has become urgent and requires determination relatively quickly notwithstanding the fact that all schools are currently suspended in Hong Kong because of the Coronavirus.        

Background

3.The solicitors acting for the father helpfully provided a written submission for the hearing on the 20 January 2020, although at the end of the day the father represented himself at that hearing. In it they set out the background to the case as follows:

4.   Both M and F were born and brought up in the Mainland.  They separately went to the USA for their tertiary education and met while both of them were at X.  They both worked in the USA before relocating to Hong Kong in 2009.  C was born in the USA and he holds an American passport.  Both M and F have HKPR.

5.   The parties were married on XX October 2004 and divorced on 5 October 2012.  The parties were granted joint custody and joint care and control on 7 August 2013 by consent [A/2].  They have also agreed on which schools they would apply for C for the admission to Primary 1 in the same Court Order [A/1-2].  Both HKIS and CIS were on the list of schools that they were going to apply for C at the time.

6.   The parties agreed to enroll C at the Kiangsu & Chekiang School (KCS) in Fall 2014 for primary 1.  Both parties also agreed that as soon as C had an offer, he would switch to an international school [B/20/5, C/8, 10].

7.   C was offered a place from HKIS in 2016 when he was nearly 8 years old.  At the time he was still attending KCS.  M agreed for C to attend HKIS for primary school [B/32/6]. The intention was for C to follow the American curriculum and eventually to apply for colleges in the Ivy League [B/20/5, B/59/6].

8.   C continued to apply to other international schools in Hong Kong and Mainland China (Beijing, Shanghai and Huizhou) despite objections from F [A/12/11].  Both CIS and Harrow had offered a place to C in early 2017 and early 2018 respectively but they were both rejected by M and F due to the intention for him to stay in HKIS [B/21/7].  It was clear at the time that the intention was for C to finish his secondary school education in HKIS and then college in the USA [B/21/6, C/8, 10].  There has never been any understanding that C should attend another school for middle school.  It was M who has now changed her mind and shifted the burden to F and C to suit her own desire.

9.   C is now 11 years old and therefore he has started his middle school with HKIS in August 2019.  He has been attending HKIS for 3 years and 3 months and has been doing well [C/134-163, 174-180].  He is especially strong in Math and Science.  The Clinical Psychologist (“CP”) also observed that “C’s school reports, information from school personnel and the father suggest positive academic and social development of the child in HKIS in general ...” [A/55/67].

10.   …

4.I should add that this case has been in and out of court since the Petitioner father first issued proceedings in 2012. As indicated above, throughout this time there have been many disputes between the parties concerning C’s care including the original choice of school. However, to the credit of both sides, they were originally able to reach some consensus, as set out in the court order dated the 7 August 2013.

5.Thus C went to Kiangsu & Chekiang School for the first three years of his school life and he then transferred to HKIS, when a school place became available. He has been at HKIS ever since, transferring from the Primary section to Middle school in August 2019. This meant that the school campus changed from Repulse Bay to Tai Tam. It would be fair to say that the mother has become increasingly disillusioned with the schooling system in Hong Kong generally, when compared to that of the Mainland, and with HKIS in particular. This is not a view that is shared by the father.

The issue

6.Consequently the current issue is as set out above – namely should C attend CIS or should he remain at HKIS? Given the new Coronavirus that is gripping Hong Kong there is also a question concerning when he should move, in the event that leave is given.

The law   

7.The law governing applications concerning all matters pertaining to children and their education is set out in s 3 Guardianship of Minors Ordinance, Cap 13, which states as follows:

GENERAL PRINCIPLES

(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;

Social Investigation Report

8.Social Welfare Reports generally provide the court with much needed background information on cases related to children. Social Welfare Officers are said therefore to be the “eyes and ears” of the court.  They make recommendations for the court’s consideration, but the court is not bound by those decisions. However if a court decides not to adopt those recommendations then reasons should be given.

9.In this instance, the Social Welfare Officer Ms LWH recommended that the status quo be maintained and that C remain at HKIS.  In the report dated the 18 June 2019 she states inter alia as follows:

Remarks and Recommendation

26.  The present investigation reveals that both Ms C [the mother] and Mr. T [the father] love and care for C dearly and try to offer him the best education, only that they have divergent views on what the “best” is. In the present dispute, Ms C hopes that C can study in CIS as she believes that CIS has a higher rate of top university entrance for its students and offers stricter curriculum and better Chinese education.  She also thinks that C should keep changing schools for a·better one.  In contrary, Mr. T thinks that stability is vital to C, who has been developing very well in a happy and supportive learning environment in HKIS and thus should stay there. The Investigating Officer, who is not an education expert/ consultant, will consider from the perspective of personal relevance of changing school to C instead of the performance of HKIS and CIS including the university entrance of their students or the standard of the curriculum, which cannot be compared directly as they are of different systems.  C’s views and the parents’ ways of approaching the issue would also been pondered on.

27.  For the issue of personal relevance, the Officer would mainly consider whether C has the need to change school and the possible impact on him of changing to study in CIS.  Firstly, for the need to change school, C is learning satisfactorily, both academically and socially, in HKIS with progressing academic performance, good relationship with the teachers and schoolmates.  He has well adapted to the learning environment with arts and sports endeavours and participation in fun activities. In particular, he has been receiving special counselling for students with parental divorce where he has received mutual support from the schoolmates of the group. For Ms C’s concern with C’s Chinese language development, out-of-school tutorials can be one of the options.  There are also private learning centres offering intensive Chinese language courses for international school students.  As such, there seems to be no imminent need for C to make a change.

28.  Since Ms C disagreed to our contact with HKIS, no full picture on C’s academic performance and social development there can be obtained. However, based on his school report, though he has a satisfactory and progressing performance at HKIS, it seems that he may not be as top and outstanding as perceived by himself or Ms C.  It is inevitable that, no matter how satisfactory he has performed at the existing school, he may still need adjustment and even more after-school time for studies if CIS has a stricter and more demanding curriculum as well as more homework and examinations as revealed by Ms C.  Given his current already tight studying schedule after school, he will have even less free time.  As expressed by C, he hopes to have more free time, which is fully justified and understandable as sufficient leisure time is equally vital for the healthy psychological and intelligential development of children.  Also, staying in Hangzhou for a year three years later, if studying at CIS, would render him less time to see his either parent under the current shared care arrangement.  In particular, he may have much less time to see Mr T whose base is in Hong Kong.  In such a sense, the current shared care arrangement may be seriously affected.

29.  Concerning C’s views, in the first instance he never initiated for changing school. All the school applications were initiated by Ms C without prior seeking of his view.  He was informed when he was required to attend school interviews.  From C’s initial expressed stress of being required to make a decision and talking to either parents about the schooling issue, and later that he paraphrased Ms C’s criticism on HKIS and praising of CIS, as well as sending repeated emails to the Officer echoing Ms C’s requests, it seems that sending the emails with the mentioned content as stated in paragraphs 21 and 23 to the Investigating Officer was not doing out of the genuine motive of a 10-year-old child.  At the same time, C knows that Mr T prefers him staying in HKIS and is dissatisfied with Ms C’s pressurizing him.  Both parties claim that C takes their respective views and advocate that C’s views should be respected.  As revealed from his inconsistent views on changing of school in different occasions, C actually feels stressed on making a decision as he is pushed by Ms C for it while Mr T opposes to it.  He is put in a loyalty conflict.  His true wish cannot be revealed as he has been under the mental influence of both parties.  As such, his views have not been listened to seriously though he eventually states that he wants to go to CIS.  While appreciating the parents’ wish of arranging the best education for the child, Ms C’s plan to keep changing school for C whenever she perceives that the school is not good enough would very likely disrupt his stability and development.  Also, criticizing the child’s teachers and schoolmates, with whom the child has a genuinely good relationship with, would only make the child feel ambivalent and uncomfortable as well as damaging-.his respect for the others.

30.  In view of the above, preserving the status quo for C to stay in HKIS is considered to be in his best interests.  Last but not least, while C seems to be torn between the parents on the issue of school change, it is hoped that both parents, who indeed hopes to give the best to C, can listen to his inner voice and accommodate his psychological needs in being trapped between disputing divorced parents.  It is hoped that both parties would find more common grounds in reaching compromises on the education and the long-term interests of C for the sake of his overall well-being and development, instead of placing him in the middle.

10.As will be seen I have decided not to follow Ms L’s recommendation. In particular I do not agree that extra tuition will resolve the issue of C’s Chinese language capability. Further I do not regard the possibility of C spending a year in Hangzhou from a negative perspective. Infact, I think it may be beneficial for C to be able to distance himself from his parent’s ongoing conflicts about him. Further, although I accept that C may have been ambivalent about changing schools when Ms L interviewed him, that is certainly not the case now. I accept however that he is in the middle of a “loyalty conflict” and that this is likely to be very damaging for him. I am also of the view that both parents are responsible for this.

Clinical Psychologist’s report

11.This is the second time that the Clinical Psychologist has prepared a report for the court on C and I have noted that she is concerned that the process itself may be damaging for him. I accept that that is likely to be the case. In her Conclusions and Recommendations she says as follows:

CONCLUSION & RECOMMENDATIONS

66. Both parents and the school personnel informed C as having normal psychosocial functioning in general. However, signs of anxiety were detected in test findings and his behaviors in the sessions. Moreover, he was extremely preoccupied with the school transfer issue and his resentment of the father throughout the assessment.

67. C’s school reports, information from school personnel and the father suggest positive academic and social development of the child in HKIS in general, and they perceived him of having hiccups in his physical and social aspects which had been resolved.  The child told the Psychologist his positive experiences with individual teachers and group members. Nevertheless, C and the mother (especially) also informed many problems of HKIS (primary and middle school), which covered the overall curriculum (especially Chinese study), teachers and peers as well as hindrance to future career development.  Regardless of a load of information and opinions provided by C and both parents on the above, I must frankly proclaim that I do not have the capability in verifying the validity of whose version is closer to the reality.  As a clinical psychologist, I also do not have the expertise to judge the strengths and weaknesses of CIS and HKIS or comment on which should be the better choice for C.

68. While I am not able to give specific comments on C’s future education, it is opined that parental conflict is the underlying factor of the complication of the school transfer issue - to which the parents deserve to pay more attention in the long run.

69. The parents hold very strong and divergent positions regarding the school transfer issue, of which C was fully aware.  He had seen the parents arguing over this issue at his school.  The mother engaged him in surfing websites related and reviewing her research results.  The father turned emotional when he indicated his decision on CIS and argued with him about the said reasons of school transfer.  It is obvious that no matter which school C is for, he will undergo pressure from the parent who does not agree with him.  Under such circumstances, even though he may be mature and rational enough, I wonder whether he could have the space to make his choice without worrying about the probable negative reaction of either parent.

70. Previous affirmations / affidavits of the parents, reports from social workers and clinical psychologists (including me) as well as the parents’ information in present assessment jointly indicate a long history of parental conflicts over C since his early childhood.  The father and the mother keep on having different opinions and arguments on parenting approaches, access arrangement, education, expectation on teachers, and culture for the child to grow up.  These arguments could arise from the parents’ great concern over the child’s benefit together with their very discrepant values and philosophy.  However, the problem is that they always cannot arrive at a compromise and are prone to resort to court proceedings for the solutions.

71. It is cautioned that ongoing court proceedings might result in increasing mistrust and resentment between the parents. Moreover, I am very worried about C’s probable increasing involvement in the court proceedings and the battle between his parents.  In the last Social Investigation Report, he had stated that he did not want the parents to argue over his issues and that he felt caught between them.  While he is growing up, he will become more and more sensitive of the parental dynamic. He may find it difficult and confused in understanding the complexity of the dynamic; he may consciously or unconsciously involve himself (or let his parents draw him) into the dynamic; and he may be aware that his expressed thoughts and feelings could be given more weigh with his increasing age.  Henceforth, he may find himself fighting the battle together with them, which could be far beyond his cognitive or emotional capability.  This will also hinder him from focusing on his own developmental tasks (such as making academic achievement, fostering personal interests and exploring the world out of the family) and probably leading to his emotional disturbance.

72. It is highly recommended that the parents should seriously consider seeking service from a parenting coordinator on their prolonged difficulty in resolving conflicts over pervasive aspects of C’s functioning.  Moreover, as a result of the parental conflicts and subsequent court proceedings, C has already undergone incessant assessments (including present one) since four years old, which process could be very stress-inducing. Therefore, unless with reasonable ground, it would be beneficial if the court could kindly free him from going for additional assessment or services from any professional.

73. It is also important for both parents to always listen to, understand and accept C with an open-minded and objective attitude.  It would be worthwhile if they could be more alert to refrain from projecting their own needs and feelings (e.g. mistrust and resentment towards each other) onto the child. They could be more careful about preventing their conflicts from interfering with their childcare arrangement and parent-child relationship.  With the child entering his adolescence stage when developmental tasks turn increasingly complicated, the parents should also be sensitive of the need to make adjustment to their parental approaches as appropriate.

12.During the hearing it is of note that the father blames the mother for involving C in this dispute, whereas the mother says that the father actually showed C the Social Welfare Report, which if true, would be considered by the court to be completely unacceptable. Further it is hard to see how the child cannot be aware of the current dispute over schooling, given that he has been interviewed by both the Ms L and the Clinical Psychologist Ms M and the main focus has been the schooling issue. I largely accept the comments made by Ms M. In particular it is clear that C is now fully engaged in this battle and that he is now firmly of the view that CIS is the more appropriate school for him.

Discussion   

13.I should say at the outset that I accept that both of the schools under discussion are generally regarded as being “good” international schools. I also accept that there is no such thing as a “perfect” school and that many schools have some of the issues that are of particular concern to the mother. However, the ethos of both of these schools is very different and I have taken judicial notice of this.

14.I have, for example, taken into account the fact that HKIS is a Christian school. It is also an American school with an American syllabus, catering mainly for North American families living in the territory and I accept that the focus is ultimately on obtaining good SATS results and going to a reputable College or university in the United States or Canada. It teaches Mandarin as a foreign language and it has two streams to cater for the wildly different language abilities of its student body. It does not offer a bilingual language program. Save for its language classes all of its lessons are taught in English.

15.In contrast, I have also noted that CIS has a dual language philosophy and that it teaches in both English and Mandarin. As part of that philosophy it is also a requirement that eventually all of its pupils spend a year at their Mainland campus in Hangzhou in year 10. It is a secular school and it offers the International Baccalaureate programme. Although some of its students go to College in the US, many others go to other top universities overseas, including universities in the United Kingdom. Others remain in Hong Kong.     

Points to consider

16.The mother has a long list of concerns and worries that are summarized in Exhibit 1 to her submission as attached to this judgment also at 1. Of those concerns it seems to me that the most important one relates to language. The mother makes a very persuasive argument concerning C’s current Chinese language capability. Although C was born in the US, his parents are both from the Mainland originally. Thus although he is an American passport holder, he is nevertheless a Chinese child and I agree that he may be hampered longer term if his Chinese language skills are not good. He really needs to be fully bilingual. This is something that has been embraced by CIS and forms a core part of the school’s philosophy. The father has suggested that this might be rectified by C having extra tuition in Mandarin. I accept however that this is unlikely to make up for the difference in approach between the two schools. I also accept that C has little time to take on even more extra tuition outside of school, especially given his current schedule and his long commute to and from the Tai Tam campus.

17.To that end I also accept that C’s job opportunities are likely to be enhanced if his Chinese language ability is good – both spoken and written. Further I accept that the mother’s desire that he identify more as being Chinese to be both genuine and sensible.

18.I also accept that the commute from Pokfulam to Tai Tam on a school bus is likely to be a long and uncomfortable one that includes a number of windy roads. The mother says that C also suffers from travel sickness which makes this journey particularly difficult. It is of note that this commute has become even more difficult since C moved to Middle school which is on the Tai Tam campus. The primary school campus is in Repulse Bay. The father says that this difficulty can be easily rectified by C taking a private car to school. With respect however it seems to me that this may not resolve the problem entirely. The commute will still be long during rush hour and the road will still be windy and C will still suffer from travel sickness. I accept that the commute to CIS will be shorter and more comfortable. The father has also suggested that the mother could consider moving closer to the school. However, ultimately it is a matter for the mother where she chooses to live and I accept that she currently wishes to remain in Pokfulam. I have also noted that the real estate on the south side of Hong Kong island is extremely expensive.  

19.In addition, both parties have expressed concerns about C’s mental health. The father believes that C has been influenced by the mother to side with her against him on the schooling issue. The mother for her part says that it is C’s genuine wish to go to CIS and that she is simply supporting him. Whatever the truth of the situation, the fact is that C is now hopelessly embroiled in the schooling issue. He has decided that he wishes to go to CIS, which is where incidentally his best friend is now studying and he views his father as being unnecessarily obstructive and difficult in this respect. He seems to be displaying depressive tendencies to the extent that HKIS have expressed concerns after he posted a couple of things online and there is a suggestion that he may even have become suicidal.

20.There is always a thin line between respecting the genuine views or wishes of a child and doing what is considered to be in their best interest. In this instance I am also very aware that C has been involved in very many disputes between his parents over a considerable period of time. I also accept that a child will often be influenced by the parent with whom he (or she) spends the majority of their time. In this instance the mother. But I also accept that the choice here is a narrow one. I am sure that C is likely to do well at either school especially if he is happy and feels supported by his parents. He is unlikely to do well if he is depressed and anxious. I also accept that at aged 11 he is likely to have formed his own view about the schooling issue, even if that view has been influenced to some extent by his mother.

21.The father points to the fact that C’s views seem to have changed over time and that originally he seemed to indicate to the Social Welfare officer that he would prefer to stay at HKIS. Now he is adamant that he wishes to go to CIS. The father does not believe that this is C’s genuine view. The difficulty with that, however, is that at present it seems very clear that C wishes to go to CIS and this does not appear to be a bad option. My concern is that the father may be opposing this in part because he knows that the mother wants it and C has unfortunately got caught up in the “miserable middle”.

22.C has not seen his father for regular access since August 2019 when the schooling issue first came up. As time has gone on everyone directly involved seems to have become more and more entrenched in their views. L has now been instructed to provide C with some independent therapeutic support and I am hopeful that the situation may right itself once this Ruling has been handed down.  

Decision     

23.Consequently having considered all of the above, I shall make an order that C shall attend CIS. I have given some thought as to timing and given the fact that all schools are at the time of writing this judgment, suspended, it seems to me that on the premise that they will definitely be up and running again by the summer term that it makes sense for C to commence CIS in the summer term 2020.

Costs

24.There shall be an order nisi to be made absolute in 14 days’ time that there be no order as to costs of this application.

Other directions

25.The summonses dated the 6 and 9 December 2019, referred to in paragraph 2 above, shall be adjourned to the 16 July 2020 at 9:30 a.m. For the avoidance of doubt both parties do personally attend that hearing.     

Petitioner and the Respondent both appeared in person