C v. D

FCMP 144/2019

[2020] HKFC 145

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NO 144 OF 2019

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BETWEEN

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D E C I S I O N

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THE APPLICATION

1.By a summons filed on 17 December 2019 (“the Summons”), the Respondent applied for the following orders :-

(a)  The Applicant do confirm in writing whether or not she seeks that (i) the Deed of Mutual Agreement and Release made on 27 August 2015 between the parties (“the Deed”) and/or the Declaration of Trust of even date made by the Applicant (“the Declaration of Trust”) be set aside; and/or (ii) the Deed and/or the Declaration of Trust be declared void;

(b)  In the event the Applicant confirms that she seeks none of the relief under sub-paragraph (a) above, she shall be bound by that confirmation and prevented from seeking such relief; and

(c)  In the event the Applicant confirms that she seeks any of the relief under sub-paragraph (a) above, the Official Solicitor be appointed as guardian ad litem of the two children involved (“the Children”) for the purposes of these proceedings, and leave be granted for the Children to be joined to these proceedings as the 2^nd and 3^rd Respondents.

2.With the consent of both parties, the Summons is dealt with by way of paper disposal.

THE RELEVANT BACKGROUND

3.The Applicant and the Respondent used to be an unmarried couple.  In the course of their relationship, they had 2 children – a daughter (“the Daughter”) and a son (“the Son”) (collectively, “the Children”).

4.On 27 August 2015, the Applicant and the Respondent executed the Deed, and the Applicant signed the Declaration of Trust.

5.In the Declaration of Trust, the Applicant confirmed, among other things, that:

(i)  she had received 4 sums of money from the Respondent and had applied such monies to purchase two properties (which shall be referred to in this Decision as “the SSH Property” and “the AB Property” respectively);

(ii)  she was the sole registered shareholder of the only share in a company (which shall be referred to in this Decision as “WBL”); however, such a share in WBL did not belong to her beneficially – she was holding such a share and all interests in WBL upon trust for the Respondent and the Son jointly or the survivor of them absolutely; and

(iii)  she was the sole registered shareholder of the only share in another company (which shall be referred to in this Decision as “LGL”); however, such a share in LGL did not belong to her beneficially – she was holding such a share and all interests in LGL upon trust for the Respondent and the Daughter jointly or the survivor of them absolutely.

6.The Applicant further acknowledged in the Declaration of Trust that the SSH Property had been acquired by WBL, whereas the AB Property was held by LGL[1].

7.In the Deed, the Applicant acknowledged, among other things, that:

(i)  she was the sole registered shareholder of LGL, and she confirmed that she was not the beneficial owner of the share in LGL but held such a share in trust for the Respondent and the Daughter jointly; and

(ii)  she was the sole registered shareholder of WBL, and she confirmed that she was not the beneficial owner of the share in WBL but held such a share in trust for the Respondent and the Son jointly.

8.According to the Applicant’s case, in response to certain behaviour on the part of the Respondent (who, among other things, allegedly threatened to evict the Applicant and the Children from their home (“the House”)), she commenced the present proceedings by way of Originating Summons under which she asked for various orders against the Respondent for the purpose of protecting and securing the living arrangements and maintenance for the Children.  As far as this Decision is concerned, the relevant claims are:

(i)  for an order that the Respondent do not prevent, inhibit or interfere with the Children living at the House together with the Applicant, and that the Respondent shall use his best endeavours to ensure that they can do so until they reach the age of 18 or finish full time secondary and tertiary education, whichever is the later in time; and

(ii)  for an order that the Respondent do settle the House into a trust for the benefit of the Children, until they reach the age of 18 or finish full time secondary and tertiary education, whichever is the later in time.

9.In her affirmation filed in support of the Originating Summons herein, the Applicant described her relationship with the Respondent at great length.  She also mentioned about the Declaration of Trust and the Deed.  In relation to these documents, she said that:

“…Clause 11 of the Deed states that the Respondent and I entered into the Deed freely and voluntarily and without undue influence or duress or pressure of any kind, whether from the other or from any third party. However, nothing can be further from the truth…I received verbal threats by telephone from the Respondent to the effect that if I did not sign those documents, he already hired private investigators to follow me…he would…blacken my name, and I would be the subject of personal violence. In particular, his threat to find someone to rape me was particularly distressing…..

In the end I felt that I had no choice but to sign the Deed and the Declaration, in light of the horrible threats made by the Respondent towards me.”[2]

10.The Applicant also alleged that she had been holding the shares in WBL and LGL on bare trust, that the SSH Property and the AB Property were reserved for use by a special friend of herself and the Respondent (“the unidentified person”) when he visited Hong Kong[3], and that she was concerned that the Declaration of Trust had put her in breach of her own duties as trustee of the shares of the unidentified person[4]. 

11.At the call-over hearing of these proceedings held on 16 September 2019 before another Judge (“the call-over hearing”), the then counsel appearing for the Applicant (not Mr. Man SC) submitted that the validity of the Deed and the Declaration of Trust would have a direct bearing on the result of these proceedings[5].

12.As the Respondent took the view that such a stance was inconsistent with the Applicant’s position as represented in various previous correspondence sent on behalf of the Applicant, the Respondent’s solicitors requested the Applicant’s solicitors to state whether the Applicant intended to set aside the Deed and/or the Declaration of Trust, or whether she would seek a declaration that those documents are void.

13.While the Applicant did reply to the Respondent’s enquiries, since the Respondent was not satisfied with such a reply, he filed the Summons and sought the orders referred to above.

THE APPLICANT’S GROUNDS OF OPPOSITION

14.The Applicant’s position may be summarised as follows:

(i)  There is no reason why the Applicant should be compelled to confirm whether she seeks to set aside the validity of the Deed or Declaration of Trust in these proceedings because the validity of the aforesaid documents is not relevant to these proceedings, and the result of these proceedings would not be affected by the question of whether the Deed or Declaration of Trust is valid.

(ii)  The Applicant has not adopted contradictory positions regarding the validity of the Deed or Declaration of Trust.  It has all along been the Applicant’s case that she would not seek to challenge the Deed or Declaration of Trust only insofar as the Children’s welfare is safeguarded and their current living standards protected.

(iii)  The Court does not have jurisdiction to grant an order in terms of the first part of the Summons, which seeks to (a) compel the Applicant to “file and serve a written confirmation”; and (b) bind the Applicant not only in this case, but also in all other future proceedings in whatever forum at whatever time whatever the circumstances.  Further, the court should not make an order which forbid a party from changing his/her position even in the same proceedings.

(iv)  Since the validity of the aforesaid documents are not at issue in these proceedings, there is no relevant conflict of interest between the Applicant and the Children.  Therefore, there can be no objection to the Applicant representing the Children’s interest in these proceedings.

(v)  In the absence of any relevant conflict of interest, there is no justification for requiring the Children to be joined in these proceedings and to be separately represented by the Official Solicitor.

15.These grounds of opposition will be discussed in turn below.

DISCUSSION

Relevance of the validity of the Deed and the Declaration of Trust

16.In my view, as pointed out by the Applicant’s then counsel at the call-over hearing, the validity of the Deed and the Declaration of Trust is relevant to the present proceedings. 

17.One of the orders sought by the Applicant by way of the Originating Summons herein is an order of settlement in respect of the House.  As accepted by Mr Man SC, the Respondent had in his Affirmation refused to settle the House in a trust for the Children[6]. The Respondent argued that there is no basis for such a claim because, apart from the fact that the Children has been living in the House without interruption, he has purchased with his personal funds the SSH Property for the Son and the AB Property for the Daughter as a gift for each of them.  If the Deed and the Declaration of Trust are declared to be invalid, and if it is found that the SSH Property and the AB Property really belong beneficially to the unidentified person as alleged by the Applicant, the Respondent will apparently not be able to rely on the aforesaid argument.

18.Furthermore, it is trite that when considering an application made pursuant to section 10(2) of the Guardianship of Minors Ordinance (Cap.13, Laws of Hong Kong), what the court should aim at is to achieve an overall result which is fair, just and reasonable taking into account all the circumstances of the case.  As far as the facts of the case before this court are concerned, the ownership of any property by the Children must, in my view, be one of those circumstances, and the validity of the Deed and the Declaration of Trust would have a direct impact on such a circumstance.

19.Mr Man SC submitted that even if the Children have beneficial interests in the SSH Property and the AB Property respectively, that would not diminish the need to preserve the House as the family home of the Children because, among other things, they have always lived there.  It follows, it was submitted, that the validity of the Deed and the Declaration of Trust will in any event be irrelevant.  As aforesaid, the beneficial interests in the said land properties must be part of the overall circumstances which the court will consider at the trial at the end of the day.  I do not think the court should decide on the Summons on the basis of such a line of submissions made by the Applicant, for this is a point which should be fully argued at the trial of the Originating Summons, rather than being decided at this stage.  The weight to be given to the fact that the Son and the Daughter have beneficial interests in the SSH Property and the AB Property respectively will be a matter for the trial judge to decide. 

20.Much emphasis has also been laid by the Applicant on the argument that the beneficial ownership of the properties should not be regarded as relevant factors when the court determines the appropriate quantum of maintenance, since the properties cannot be easily realised to pay for the general expenses of the Children’s upbringing.  I agree.  However, it is apparent that it is not the Respondent’s case that those properties could or should be so used.  It can be seen from the Respondent’s Affirmation that he was making use of the gift of the two properties to oppose against the Applicant’s claim relating to security of accommodation, rather than to the quantum of maintenance.[7]  

21.Because of my above view that the validity of the Deed and the Declaration of Trust is a relevant matter to be considered by the court in these proceedings, the Applicant’s argument that her financial position has become irrelevant in these proceedings in light of the Respondent’s “millionaire’s defence” cannot assist her at all.  It follows that the exact time when the Applicant knew that the Respondent would be running this defence in these proceedings is not a matter which requires further discussion in this Decision.

22.The Applicant had in her written submissions criticised the Respondent for having failed to explain in his submissions why it is said that the validity of the Deed and the Declaration of Trust is relevant.  With respect, I find this criticism unjustified.  First of all, it is the Applicant who raised such an issue on validity in her 1^st Affirmation which was filed in support of the Originating Summons herein.  If such a matter is not relevant to these proceedings, the Applicant should not have included it in her supporting affirmation in the first place.  Secondly, given her then counsel’s repeated submissions made in the call-over hearing that the issue of validity is relevant to these proceedings, I do not think it is necessary for the Respondent to make such a point in his submissions.

23.Mr Man argued that the Applicant’s then counsel did not commit the Applicant to challenging the validity of the Deed and the Declaration of Trust in these proceedings at all; and that at most, her then counsel only stated (1) that those documents “should not be allowed to stand”, or (2) that the Applicant “[did not] accept” that she had “conceded the [D]eed”, in the call-over hearing. This argument is rejected.  It can be seen from the transcript that the Applicant’s then counsel was, in the said hearing, advocating for the “consolidation” of these proceedings with another set of proceedings (FCMP 193/2018) brought by the Applicant under the Domestic and Cohabitation Relationships Violence Ordinance (Cap.189, Laws of Hong Kong)[8], and the argument which was relied on was that there were common questions of facts raised in both sets of proceedings.  In response to the court’s query on whether there were indeed common questions of facts, the Applicant’s then counsel had this to say:

“…Your Honour would doubtless have had in mind that the question, that some common question, not just of law but all fact…arises in both, and all of the facts that arise in [FCMP 193/2018] are relevant to [these proceedings]…Yes, every single one. And they’re all relevant because they go to the question of security, they go to the question of housing and, similarly, the 2015 deed circumstances do go to the question of injunction because the complaint that’s made by the mother is this wasn’t an isolated incident, this was a campaign of harassment going back many years. And she’s entitled to put that case and indeed does put that case. That means that in Venn diagram terms there is a complete eclipse between these two sets of facts. All of the facts in [FCMP 193/2018] are going to be relevant in [these proceedings] because they will go to the circumstances that surround the deed and whether there was unconscionable behaviour by the father. They also go to the need for housing, whether or not the deed is effective, and they go to the cost of security.[9]

24.There were also the following exchanges[10] between the bench and the Applicant’s then counsel on the said query:

COURT:	…whether those are threat – whether there were those threats; (2) whether those alleged threats amount to harassment or simply an expression of feeling or an expression under freedom of speech or are they amount to threat…
COUNSEL:	Your Honour, absolutely, and they then go to the question of the deed.  For example, saying to the mother of young children, “I am going to get a black man to come and rape you” is the sort of remark which we say easily fits within harassment and also undermines the whole of the deed, but it’s going to be a common factor in both cases rather than being litigated twice over.
COURT:	But that is not related to the financial provision application, whether or not related to the financial provision application, whether or not the father said those words.  If he said those words, that is not related at all to the financial provision application, is that right?
COUNSEL:	It is in two ways.  First of all, if the deed was procured as a result of that threat, then the deed is void, and as such the occupation of the property is not subject to the deed as the father would say.  Second, the mother’s fears for her security which are a real cost, a real part of her expenses, are justified and she needs to be given the protection in respect of that.  This is not a case like C v C, not remotely.  This is a real fear case which has financial consequences both in terms of her security, of the occupation of her home and her personal security in the form of bodyguards, CCTV and so on, so it is relevant to both.

25.There are other parts of the transcripts which have been quoted by the Respondent’s counsel in their written submissions.  However, I do not think it is necessary for them to be quoted in full in this Decision.  It is already plain enough from the above that the Applicant’s then counsel had confirmed at the call-over hearing that the validity of the Deed shall be challenged at the trial of these proceedings. 

Whether the Applicant had adopted contradictory positions

26.One of the grounds relied on by the Respondent in justifying the application made under the Summons is the Applicant’s alleged shift of position in relation to the Deed and the Declaration of Trust.

27.In his submissions, Mr Man SC maintained that the Applicant had never adopted any contradictory positions as alleged, because it had all along been the Applicant’s position that she would not seek to challenge the Deed or the Declaration of Trust “only insofar as the Children’s welfare is safeguarded and their current living standards properly protected”[11] (“the Alleged Condition”)

28.While I agree that was indeed the position taken by the Applicant in some of the letters sent by her solicitors, this was not the case in respect of the letter sent by Messrs. Withers dated 30 November 2018, in which it was clearly stated that the Deed is unchallenged, without any condition or qualification.

29.Even if I am wrong on my interpretation of the said letter, the current stance adopted by Mr Man SC on behalf of the Applicant is apparently different from that adopted by the then counsel of the Applicant at the call-over hearing.

30.Furthermore, it must be remembered that it is because of the Applicant’s stance that the Respondent has “plainly refused to properly safeguard the Children’s welfare or protect the Children’s current living standards” that these proceedings have been commenced.[12]  In other words, it must be the Applicant’s view that the Alleged Condition has not been satisfied.  However, it appears from the written submissions of the Applicant’s counsel that she is not seeking to challenge the Deed or the Declaration of Trust herein.   

31.I am of the view that in light of the Applicant’s inconsistent stance, from case management point of view, it is necessary for the Applicant to confirm one way or another whether she is going to challenge the Deed and/or the Declaration of Trust in these proceedings, provided the court has the jurisdiction to order the Applicant to do so. 

The Court’s jurisdiction

32.The Applicant initially argued that the order sought by the Respondent pursuant to paragraph 2 of the Summons is too wide, in that such a paragraph was phrased without limitation, and it would have the effect of requiring the Applicant to commit herself not only in this case but in all future cases. 

33.With the Respondent’s clarification that he is not seeking an order that the Applicant be bound beyond the present proceedings, I do not have to say anything more on this point.

34.However, even with this clarification, the Applicant maintained that this court should not grant the order sought by the Respondent.  Mr Man SC, in his written submissions, stated that:

“…it is noteworthy that the only source of jurisdiction which the Respondent relies on is the general case management powers and underlying objectives in O.1A and O.1B RDC; no attempt is even made to identify a specific jurisdictional basis.”

35.It is not entirely clear whether, by virtue of the above submission, it is Mr Man’s argument that the general case management powers and the provisions of underlying objectives in O.1A and O.1B of the Rules of the District Court are not sufficient in terms of giving the court jurisdiction in requiring a party to state his/her position in a particular set of proceedings.  If it is, then I disagree.

36.Under Order 1A rule 1 of the Rules of the District Court (“RDC”), it is provided that:

“The underlying objectives of these Rules are –

(a)  to increase the cost-effectiveness of any practice and procedure to be followed in relation to proceedings before the Court;

(b)  to ensure that a case is dealt with as expeditiously as is reasonably practicable;

(c)  to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings;

(d)  to ensure fairness between the parties;

(e)  to facilitate the settlement of disputes; and

(f)  to ensure that the resources of the Court are distributed fairly.

37.To further the above underlying objectives, the court is required by Order 1A rule 4(1) of the RDC to manage cases actively.  This includes “identifying the issues at an early stage” (rule 4(2)(b)), “deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others” (rule 4(2)(c)) and “giving directions to ensure that the trial of a case proceeds quickly and efficiently” (rule 4(2)(l)).  As pointed out by the Respondent’s counsel, the court may also take any other step or make any other order for the purpose of managing the case and further the underlying objectives set out in Order 1A (Order 1B rule 1(2)(l)).

38.In my view, it is of utmost importance that the issues which are required to be determined at the trial are identified early, so that, among other things:

(i)  as a matter of fairness, both parties know clearly what they have to deal with at the trial so that they can prepare for the trial accordingly;

(ii)  parties need not incur legal costs and time on matters which are not required to be dealt with at the trial;

(iii)  the court may give appropriate directions to facilitate the fair and expedient resolution of the issues;

(iv)  appropriate court hearing time can be allocated to the proceedings.

39.Given how the Applicant had conducted her case so far (different counsel engaged by her had made contradictory submission on the relevance of the issue of validity of the Deed and the Declaration of Trust to these proceedings), I hold that this court ought to exercise its case management powers in requiring the Applicant to confirm her stance on the Deed and the Declaration of Trust in these proceedings.  She should not be allowed to reserve her position.  Neither should the Respondent be left to wonder whether the validity of the aforesaid documents will be raised at the trial as an issue at the end of the day, particularly when it is apparent that the Applicant is quite eager to emphasize, in her counsel’s written submissions dated 16 June 2020, that she only does not presently seek to set aside the Deed and the Declaration of Trust in these proceedings.  This indicates that it is possible for her to change her mind in future in these proceedings.

40.Moreover, it is noted that the Applicant has already included evidence in support of her stance on validity of those documents in her supporting affirmation.  In other words, she is ready to have the matter tried by the court.  The court should not tolerate the situation where the Applicant in effect may say on day one that certain matter is not going to be raised with a reservation of her right to do so, and then on day two such a right may be exercised freely without any constraint.  This would be most unfair to the Respondent. 

41.Mr Man SC submitted that, to take the analogy with general civil matters, even pleadings are always subject to the possibility of amendment, and the court retains full powers to decide whether to accede to a future application to amend.  It was further argued that the court does not make orders to the effect that the pleadings can never be amended whatever the circumstances, and there is no justification to foreclose the court’s powers to deal with the future without knowing what the future relevantly involves. 

42.In a general civil case, a party is bound by his pleadings.  If a party does not ask for a particular relief in his Statement of Claim, he will be bound by it and be prevented from seeking such relief, unless he has obtained leave from the court to amend his Statement of Claim by adding such a relief thereto.  When an application for amendment is made, the court would have to decide whether such an application should be allowed.  If allowed, and if the amendment is made accordingly, such a party will not be bound by his “old” Statement of Claim anymore.  He will be bound by his Amended Statement of Claim instead.  Applying the same logic, even if this court orders that the Applicant shall be bound by her confirmation and prevented from seeking any relief set out in paragraph 1(a) or (b) of the Summons, I am of the view that there may well be an argument that it is open to the Applicant to come back to the court at a later stage and apply for an order which has the effect akin to “amending her pleadings”.  However, I do not think whether such a route is available to the Applicant is a matter which this court has to make a ruling on in this Decision.  This should be considered if and when such a further application is really placed before the court.

43.What this court must emphasize is that solicitors always have the duty to fully advise their respective clients on all matters concerning the case, so as to make sure that all instructions from clients are given on an informed basis; once given, such instructions should not be changed lightly, otherwise time and costs would be wasted.

44.Moreover, as far as this case is concerned, it is noted that the Respondent has already filed and served his affirmation in opposition to the Originating Summons. Hence, the Applicant, with legal advice, should be able to consider thoroughly whether it is necessary to challenge the validity of the Deed and the Declaration of Trust in these proceedings.  It is simply not expected that she will change her position again on this matter.

45.To make sure that the Applicant will have enough time to consider what confirmation she shall give pursuant to the order to be made herein, this court will allow 28 days for the Applicant to give her confirmation, instead of merely 7 days as prayed for in the Summons.

46.Finally, Mr Man SC argued that:

“Strictly speaking, and insofar as it is necessary for the Applicant to so argue, §§1-2 of the Respondent’s Summons does not preclude the Applicant from contending[13] in these proceedings that the Deed and the Declaration are invalid. It only precludes the Applicant from seeking the relief that the Deed and the Declaration be set aside and/or declared void in these proceedings.”

47.I do not agree that such a course is open to the Applicant.  If Mr Man is right, it would simply defeat the whole purpose of the Respondent’s application as well as the court’s case management direction.  In my view, in the circumstances of the present case, and as a matter of effective case management, if it is the Applicant’s confirmation that she will not seek to set aside the Deed or the Declaration of Trust in these proceedings, then the issue of validity of those documents should not be allowed to be raised as an issue to be resolved in these proceedings at all.

Whether there is any conflict of interest

48.The next question is, if it is contended on behalf of the Applicant that the Deed and/or the Declaration of Trust is/are invalid, whether there is any conflict of interest between her and the Children.

49.The Applicant’s submissions that there is no such conflict have been made on the basis that the issue of validity of the Deed and the Declaration of Trust does not arise in these proceedings.  However, as discussed above, this argument is rejected by this court.

50.In the event the Applicant is challenging the validity of those documents in these proceedings, there would be, in my view, conflict of interest between the Applicant and the Children, because the Children’s beneficial interests in the SSH Property and the AB Property respectively would be prejudiced if those documents are set aside.  Their interests in the said properties would be inconsistent with the Applicant’s own duties as trustee of the shares of the unidentified person, which the Applicant said she had been in breach of by executing the Deed and the Declaration of Trust[14].

Separate representation and joinder of the Children

51.Under paragraph 3 of the Summons, the Respondent asks that, in the event the Applicant decides to seek any of the relief set out in paragraph 1 of the summons:

(i)  the Official Solicitor be appointed as guardian ad litem of the Children for the purpose of these proceedings; and

(ii)  leave be granted for the Children to be joined to these proceedings as the 2^nd and 3^rd Respondents.

52.The Applicant’s submissions made in opposition to this paragraph were premised upon the assertion that there is no conflict of interest in the present proceedings between the Applicant and the Children.  Those submissions have been rendered irrelevant upon the court’s finding that there is such conflict of interest.

53.Both parties have drawn the attention of this court to Practice Direction SL6 – Guidance on Separate Representation for Children in Matrimonial and Family Proceedings.  The following paragraphs have been highlighted by the parties:

(i)  Paragraph 2 – “Separate representation is not a must in all cases given that separate representation is not always in the best interests of the child.  This is because undue stress may be caused to the child who has no wish to participate as the child does not want to side with either parent.  Whilst children will have views during parental separation it does not follow that all children want to be actively and directly involved in the legal proceedings.  Further in cases where a child’s view is adequately reflected in evidence before the court such as a Social Investigation Report, separate representation may not be necessary or beneficial.  It is also recognized in other jurisdictions that separate representation of the child may result in a delay in the resolution of the proceedings.”

(ii)  Paragraph 7 – “The court can appoint either the Official Solicitor or a guardian ad litem for any child where it is of the opinion that such separate representation is appropriate.  Under Rule 108 of the Matrimonial Causes Rules (MCR), Cap.179 the court has a wide discretion to order that a child should be separately represented in any matrimonial proceedings.  The court can appoint the Official Solicitor if he consents or appoint another person on the application of that other proper person to be guardian ad litem.  Under Rule 72 of the MCR the court may order separate representation either by a solicitor or by a solicitor and counsel for children in relation to financial and property applications and may appoint the Official Solicitor or other fit person to be guardian ad litem of the children for the purpose of the application.”

(iii)  Paragraph 8 – “Although there is no definition of who may be a “proper” or “fit” person, it is generally not considered appropriate for a child’s parent to be his guardian ad litem where the proceedings concern applications for custody and/or access or financial and property matters since there will inevitably be some conflict of interest (as may also be the case with members of the child’s immediate family).  In both Rules 72 and 108 there is a provision that unless the person appointed to separately represent the child is the Official Solicitor, a certificate must be filed by a solicitor that the person proposed to be guardian ad litem has no interest which is adverse to the child and that he is a proper person to be such guardian.  The effect of this provision is that the guardian ad litem who is not the Official Solicitor must represent the child through a solicitor.  Although a solicitor can be a proper or fit person to be appointed guardian ad litem, it would be inappropriate to do so where he has previously acted for one of the parties, even if he is no longer acting as such.  Even if a solicitor is appointed the guardian ad litem to represent a child, that solicitor must do so by engaging the services of another solicitor.”

(iv)  Paragraph 11 – “The role of the Official Solicitor as a child’s separate representative is twofold: as an officer of the court the Official Solicitor investigates how the child’s interests are best served while simultaneously representing the child’s views as his solicitor in the proceedings”.

(v)  Paragraph 13 – “Separate representation for children should not be the norm but rather it should be decided by the judge on a case by case basis and where the circumstances justify it.”

(vi)  Paragraph 14 – “The judge in any given case is uniquely placed to be aware of the facts and issues in that case and will also have regard to the welfare of the child as the paramount consideration.  The judge is therefore the best person to exercise the discretion to order separate representation.  The test is whether it appears to the court that separate representation is in the best interests of the child.  In considering whether a child should be separately represented the court will take into account factors such as avoidance of delay and whether other alternatives have been explored such as requesting the social worker to carry out further work or obtaining expert evidence.  The question of separate representation is a balance between the risk of potential harm to the child if he has no voice in the proceedings, the risk of adverse effects on a child who is reluctant to be drawn into a parental dispute and the cost and time burden to the family courts which increased representation will bring”

(vii)  Paragraph 15(iv) – “…Solely by way of guidance the following are a non exhaustive list of circumstances where the judge could consider making an order for a child to be separately represented… Where the child has a standpoint or interests which are inconsistent with or incapable of being represented by any of the adult parties or cannot be adequately met by a report to the court…”

54.I have considered PDSL6 carefully.  I am of the view that, in light of the conflict of interest discussed above, having regard to the welfare of the Children as the paramount consideration, there should be separate representation for the Children.  The best interests of the Children can only be secured if such an order is made.  As mentioned above, the Applicant has not suggested that there is any alternative way to deal with the situation in the event the court finds that there is conflict of interest.

55.Because of the background of the case, it is apparently inappropriate to appoint either of the parents as guardian ad litem in the present case.  As there is no evidence before the court that there is any other fit or proper person who should be appointed, the Official Solicitor would seem to be the only appropriate person to be appointed as the guardian ad litem of the Children in these proceedings.

ORDERS

56.Since the Respondent has confirmed that he is only seeking a confirmation on the part of the Applicant for the purpose of these proceedings, wordings should be inserted into the order so as to eliminate any possible argument on this matter.

57.Further, as aforesaid, the Applicant will be allowed 28 rather than 7 days to confirm her stance.

58.I therefore make the following orders :-  

(1)  The Applicant do file and serve, no later than 28 days from the date of this Decision, written confirmation of whether or not she seeks:

(a)  that the Deed and/or the Declaration of Trust be set aside; and/or

(b)  the Deed and/or the Declaration of Trust be declared void.

(2)  In the event the Applicant confirms that she seeks none of the relief set out in sub-paragraph (1) above, she shall be bound by that confirmation and prevented from seeking such relief.

(3)  In the event the Applicant confirms that she seeks any of the relief set out in sub-paragraph (1) above:

(a)  the Official Receiver be appointed as guardian ad litem of the Children for the purposes of these proceedings; and

(b)  leave be granted for the Children to be joined to these proceedings as the 2^nd and 3^rd Respondents respectively.

Costs

59.The Respondent has been successful in this application.  There is no reason why costs should not follow the event.  I make a cost order nisi that the Applicant do pay the Respondent’s costs (including all costs reserved, if any) of the Summons, to be taxed if not agreed, with certificate for counsel.  In the absence of any application made within 14 days to vary, this cost order nisi shall become absolute.

Mr. Bernard Man SC, instructed by of Messrs. Gibson, Dunn & Crutcher, for the Applicant

Mr. Deepak Nagpal, Mr. Eugene Yim and Ms Sheena Wong, instructed by Messrs. Jonathan Mok Legal, for the Respondent