P Y J v. N K S

FCMC 3846/2017

[2021] HKFC 187

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 3846 OF 2017

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Coram :  District Judge S. Lo in Chambers (Not Open to Public)

Date of Hearing: 2 September 2021

Date of Judgment:  17 September 2021

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D E C I S I O N

( Schooling )

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Introduction

1.This application involves the issue of which primary school the child of the family, a boy now aged 5 years and 10 months old (“the Child”), shall attend for his upcoming primary 1 school year of 2021/2022.

2.Originally, the Mother proposes the Child shall study at either Canossa School Hong Kong (“Canossa”) or Kiangsu & Chekiang Primary School (“KCS”).  At the hearing, Mr Leung for the Mother submitted that the court can simply focus the choice of Canossa and ignore the choice of KCS.

3.On the other hand, the Father proposes Shrewsbury International School (“Shrewsbury”).

4.Places at the 2 primary schools have been reserved for the Child and pending the Court’s decision, the Child can immediately start.

5.It was agreed between the parents that the Child would attend and had attended Shrewsbury from 23 to 31 August 2021, and Canossa on 1 and 2 September 2021. As the parents fails to agree further interim schooling arrangement at the hearing, I made an interim order that the Child do continue to attend Canossa from 3 September 2021 until further order.

Social Welfare Reports

6.The Court is assisted by the Social Welfare Report dated 21 January 2021 (“1^st SIR”) and in particular, the Updated Social Welfare Report dated 25 August 2021 (“the 2^nd SIR”) which was prepared for the purpose of updating the recommendations on care and control as well as a discussion on the schooling issue.  Despite the Court’s direction that Ms Lora Lee is to prepare a brief report on the issue of schooling in relation to the Child on or before 23 August 2021, the Father has concerns about the appropriateness, relevant experience and qualification of Ms Lora Lee to prepare such a report and had counter offered another psychologist.  Eventually, no report was prepared.

7.The Child had studied previously in a local school at St. Margaret Mary’s Catholic Kindergarten (“St. Margaret”) since K1.

8.The SWO who gathered the information from the Child’s class teacher in St. Margaret observed the following at §22 of the 1^st SIR:-

“22. According to Ms. Fung, class teacher of [the Child], he was a good and cheerful boy. He used to have good hygiene and tidily-dressed and kept his school work submitted timely. [The Child] arrived school timely under the escort of mother or father/paternal aunts. He enjoyed schooling and interacting with his classmates. He showed too response towards teacher’s teaching in classroom but as observed, his self-care performance was a bit weak as compared with other classmates. He was emotionally stable in school in most of the time.

9.In the 2^nd SIR, similar observations were reported at §15:-

“15. [The Child] completed K.3 at St. Margaret Mary's Catholic Kindergarten in Happy Valley in 7/2021 and would be promoted to primary education in 9/2021. According to [the Child’s] school report (2nd term of 2020-2021), [the Child] was reported to be obedient, able to respect others, play operatively and accept correction. He was awarded an ‘Improvement Award’ in this school term due to his great improvement on self-confidence and motivation to learn. Ms FUNG, class teacher of [the Child] further opined that [the Child] was a nice and cheerful boy. His overall performance in school was satisfactory. Among his school performance, Ms FUNG observed that [the Child’s] handwriting skill was a bit weaker than other children of his similar age. So, he easily got into stress when he was asked to do some repetitive handwriting. Besides, he sometimes became nervous and felt insecure when he sensed he could not complete his tasks within teachers' time limit. Usually, he was more willing to learn if his atmosphere was relaxing or secure to him.”

10.The SWO summarized the parents’ view succinctly in § 22 and §25 of the 2^nd SIR, but offered no definitive proposals on choice of schools.

11.The SWO noted the Mother’s reasoning for preferring Canossa at §22 of the 2^nd SIR:-

“For [the Child]'s schooling, [the Mother] felt frustrated that [the Father] only provided the proposal of Shrewsbury to her in 4/2021 whereas she has offered her proposal to [the Father] since 6/2020. [The Mother] revealed she has no resistance towards the teaching mode of international schools but she regarded Shrewsbury was not the best choice among the existing three ones at this stage. Owing to Shrewsbury's relatively green background in HK (just established in HK in 2018), its academic performance track record might not be substantive. Besides, unlike some other international schools in HK, Shrewsbury has not offered secondary education and with a British curriculum which was not common in HK. It might not only limit [the Child]'s future secondary school choices but also brought insecurity or adjustment difficulties to [the Child] in the future. In view of Canossa (or KCPS)'s long history of teaching experience, [the Mother] had much more confidence on their teaching performance. In addition, [the Mother] noted that Ngai used to be under all-rounded care and attention in both her and [the Father]'s families all the time. She hoped the boy to learn to be independent for his self-growth. [the Mother] was more appreciated that these local schools were more focusing on children's character, moral and ethical education as well independence training. Further, [the Mother] hoped [the Child] would receive more Chinese education under the learning atmosphere of local school. She thought [the Father] might worry the local schools would induce study stress to [the Child] due to the demand of school work or examination. [The Mother] believed that both she and [the Father] were caring and supportive to [the Child]'s study that they both would help the boy to adjust his study according to his learning pace and ability.”

12.The SWO also noted in the 2^nd SIR the reasons why the Father preferred Shrewsbury over Canossa at §25:

“25. For schooling, [the Father] considered local school was not the best option for [the Child]. He revealed that [the Child] was assessed to be a talented boy in 2020 by clinical psychologist. He considered [the Child] could get more benefit from Shrewsbury as the school promoted tailor-made support to meet individual student's learning need and strength. It would further help [the Child] to develop his traits and potential comprehensively. On the contrary, the local schools, might not able to specifically address to the individual student's need under their prevailing teaching framework. Besides, upon his direct communication with Shrewsbury, he was impressed that the school would provide strong support to the child who was in need of emotion support like [the Child] from a divorced family. He also considered the study environment in an international school used to be more relaxing than in local school. He worried [the Child] would have studying stress if academic work was emphasized in local schools. [the Father] understood [the Mother] concerned Shrewsbury's short period of operational experience in HK which might not meet [the Mother’s] expectation for international school. Upon his understanding, the school has equipped with experienced teaching staff who would still provide professional teaching quality as well. Hence, as for the needs of [the Child], [the Father] considered among the existing three choices, placing [the Child] to international school, instead of local school was the best interest. [The Father] thought that [the Mother] had low motivation to explore the teaching service of Shrewsbury and she tended to reject this school because of it was his proposal and the school’s location was in the vicinity of his residence…”

Brief background of the family and the proceedings

13.The Mother was born in China and came to Hong Kong in 1991.  She studied Canossa for primary school, completed her secondary education in a local school Hong Kong and she finished her tertiary education in the UK. 

14.The Father was born and grew up in Hong Kong.  He is ranked 5^th amongst six siblings.  He also completed secondary education in a local school in Hong Kong and finished his tertiary education the UK. 

15.The parties met in 2012 and married in November 2014.  The Mother gave birth to the Child in October 2015.  The Mother has previously worked at her parent’s business and later, became a full time mother.  The Father is a solicitor in Hong Kong and is now a partner of a law firm.

16.In March 2017, the Mother petitioned for divorce and the Decree Absolute was granted on 5 December 2018.  By consent, it was ordered on 6 September 2018 that the Child would be mainly under the Mother’s care, and the Father would have the following care and control as framed in the respective orders (“the Consent Order”):-

(1)  During weekdays: every Monday from 4:00 p.m. to 9:00 p.m. and Wednesday from 6:00 p.m. to 8:00 p.m.;

(2)  During weekends: On an alternate basis:-

(a)  Week 1: from Saturday 8:00 p.m. to Sunday 8:30 p.m.;

(b)  Week 2: from Saturday 10:00 a.m. to Sunday 8:30 p.m.

17.As noted by the SWO in the 1^st SIR, it seemed that at that time, both parents were able to mutually trust each other and work together for the best interests of the Child.  However, the Father made accusations on 13 May 2020 by alleging that the Child’s ear had been pinched by the maternal grandmother. The Father had the Child admitted to hospital and he stayed for days. The Mother’s access to the Child in hospital was restricted by the Father and his family members.  The Father then made a police report that triggered a criminal investigation against the grandmother. 

18.A Multi-Disciplinary Case Conference involving numerous people (ie the Child’s school principal, teacher, doctors, police officers and social workers) concluded that the alleged child abuse case was unsubstantiated on 5 June 2020.  On 8 August 2020, the police confirmed that no criminal charges would be laid against the maternal grandmother.

19.As the Father refused the return of the Child to the Mother’s care in accordance with the Consent Order, the Mother issued an application for the immediate return of the Child on 24 June 2020 and for the reinstatement of the previous care arrangement.  The Father thereafter issued a summons for the variation of the care and control of the Child to himself.  The trial of the variation application has been fixed in November 2021.

The relevant legal principles

20.The general principles governing children’s matters are set out in section 3 of the Guardianship of Minors Ordinance (Cap. 13) and the paramount consideration is the welfare of the Child.

21.In terms of schooling decisions, I accept Mr Leung’s submission which is not disputed by Ms Kwan for the Father that there is no exhaustive list as to the factors that have to be considered by the Court.  Each case, and weight of each factor, will be determined on its own facts on a case by case basis.  Nevertheless, past authorities have revealed some factors that have been considered in particular case or cases.  For example:-

(1)  Importance of stability in schooling (see CCMJ v SSM fka SKL, unrep. (FCMP 67 of 2010) (Deputy Judge Own (as he then was); 30 August 2013);

(2)  Language of schooling (see: MT v. HYC [2020] HKFC 55);

(3)  Convenience of commute/transportation (see: STY v. LMSC [2018] HKFC 170);

(4)  Background of the family (see: A v B, unrep. (FCMC 9824 of 2015) (Judge Melloy; 22 August 2016);

(5)  Special consideration for primary caregiver’s views (see: W v F , unrep. (FCMC 809 of 2004) (late Judge Carlson; 21 June 2004) and STY v. LMSC, supra).

22.Some of the above factors will be discussed further below if I consider relevant in the present case.

Discussion

23.To start with, Mr Leung correctly submitted that the schooling issue for the children of the family really should be a decision that the parents make on their own after sensible discussion between themselves rather then left to any third party.

24.In STY v. LMSC, supra, Judge CK Chan said:

“18.  Generally speaking, the persons in the best position to make decisions on children’s schooling should be their parents.  Therefore, it is regrettable to note that the choice of both A and C’s schools have to be made by this court…..

……

20.  Furthermore, I think the more important question here is which school will suit the needs of the children better, instead of simply seeing which school is performing better academically, or having a better Chinese curriculum, or having a smaller class size, or having a Canadian connection…….” 

25.Unfortunately, the parties cannot come to any consensus despite assistance from various 3^rd parties including the SWO, the co-parenting coordination service and mediations.  Since neither party are willing to compromise and agree on such an important decision for the Child, the Court will need to do so even if it is done so unwittingly. Instead of commenting which school is better, I will have to do a balancing exercise and consider which school would best suit the Child and his needs both in the short term and long term.

Brief background of Shrewsbury and Canossa

26.To begin with, I have to emphasize again that it shall not be the role of the court to compare 2 schools and make the finding that which one is better.  For the sake of this application, it may be convenience to set out the very brief background of the schools. 

27.Shrewsbury is a well-known and long standing boarding school for 13 to 18 year olds studying the IGCSE and A Level curriculum in the UK.  In August 2018, it set up a franchise school for primary students aged between 3 to 11 in Hong Kong and is an awarded international primary school.  It is a new school here and there are not many graduates yet of this school so one cannot see what are the secondary schools that they have consequently applied to.  There is very little track record of its graduates.

28.Canossa has been a co-ed school since 1984.  The Mother is an alumnus of Canossa and that is one of the reasons why she prefers it for the Child, because she has experienced the school herself.  Given the Mother has more connection with some of the parents which are also alumni of the school, I accept that it would assist the Child to adopt to this primary school and that it is actually beneficial to the Child having gone to the same school.

29.According to the Mother, she has been told by Ms Fung, the Child’s school teacher in St. Margaret that there have not been any students that have progressed from St. Margaret to Shrewsbury, whilst there have been students who have progressed to Canossa.  As there are old schoolmates of the Child from St. Margaret studying in Canossa for primary 1 with the Child, I consider that it would be easier for him to adapt the new school life in Canossa better than Shrewsbury. 

Brief family background

30.In term of the family’s background, I accept that it is quintessentially local Hong Kong as both parents were locally educated until University, when they both went to the UK.  Both parties’ parents and the family relatives are based in Hong Kong.  The Mother does not have any foreign passport and to her knowledge, neither does the Father.  Most of the parties’ friends are also based in Hong Kong. 

31.In A v B, supra Judge Melloy held that a 5 year old child would be more suited to a local school given her similarly middle-class Cantonese background with a strong grounding in Chinese culture first and therefore, a strong grounding in Cantonese.  The learned Judge considered that the school in question, catered to building a strong foundation in Cantonese plus some emphasis on English. 

32.I agree with Mr Leung for the Mother that the family background in the present case is similar to that of the family in A v B and that Canossa would represent the school that would better “cater for building a strong foundation in Cantonese plus some emphasis on English”.  Shrewsbury would provide a strong foundation in English plus some emphasis on Chinese and the Child would be taught in simplified Chinese which does not have direct applicability in Hong Kong.  I also share with the Mother’s concerns whether it would be too difficult for the Child to suddenly have English as his medium of instruction at Shrewsbury. Mr Leung for the Mother submitted that in the near to medium future, this Chinese family is likely to remain in Hong Kong and that being totally fluent and literate in the Chinese language (in its local form i.e. Cantonese with traditional Chinese instead of simplified Chinese) will clearly be beneficial to the Child given his heritage, upbringing and future outlook.  I agree.

Convenience of commute/transportation

33.For a young child studying in the primary instead of secondary school, I do consider that the location of the primary school is relevant.  In terms of travel, Canossa is in located in Quarry Bay, about a 5 minute walk with the Child from Quarry Bay MTR station:-

(1)  From the Mother’s home in Taikoo Shing, it will take approximately 4 minutes by car, approximately 15 minutes by public transport (i.e. MTR), and about 15 minutes by walk (with the Child). 

(2)  From the Father’s home in Tseung Kwan O, it will take approximately 20 minutes by car and approximately 25 minutes by public transport (i.e. MTR).

34.Shrewsbury is located in Lohas Park and is about a 20 minute walk with the Child from Lohas Park Station:-

(1)  From the Mother’s home in Taikoo Shing, it will take approximately 35 minutes by school bus and approximately 55 minutes by public transport (i.e. MTR);

(2)  From the Father’s home in Tseung Kwan O, it will approximately 15 minutes by car and approximately 25 minutes by public transport (i.e. MTR).

35.I accept that if Canossa is chosen, certain time say about 30 minutes on every Wednesday to Friday can be saved during the interim arrangement when the Mother is having the care and control.  Even on every Monday and Tuesday when the Father is having the care and control, the travelling time to Canossa is within 30 minutes, which is reasonable.  As a whole, the Child will have less travel time to Canossa compared to Shrewsbury in a week.  This is actually for the benefit of the Child for him to spend that period of time on studying, playing, doing exercise etc. In case of any emergency and special occasions, for example, extreme weather like Typhoon no. 8, suspension of school due to influenza etc., it would be easier for the Mother as a full-time mother to make arrangement for the Child if the school is located not too far away from the Mother’s residence. 

Future schooling plan

36.For the future schooling plan of the Child, namely his secondary school, Shrewsbury teaches the British National curriculum, whereas most international secondary schools in Hong Kong have now adopted the Internationale Baccalaureate (“IB”) curriculum.  The Father said that 1/3 of international schools in HK adopted the British curriculum, and a number of Shrewsbury graduates went further to study at IB secondary school.  In my view, as Shrewsbury only established for about 3 years, it has too little historical information to tell.  On the other hand, I find that Canossa has much more clear track records of their students, both boys and girls progressing to classic local secondary schools.

37.I share with the Mother’s concern that if the Child finds it difficult to adapt to Shrewsbury and the parents want him to change back to local school, or perhaps the parents decide he should study in a local school for secondary school, this may be difficult if not impossible given that he would have been out of the local school system for so long.  However, transitioning from a local school to an international school is conventionally easier compared to changing from an international school to local school.  It is more flexible and easier for the parties to plan the Child’s secondary schooling in the future if Canossa is chosen.

38.I agree that the chance of the Child going overseas for education is a possibility as both parties were received their tertiary educations in the UK. Having said that, I think that it may be a bit pre-matured to plan the Child’s tertiary education in the meantime. 

The Mother’s wishes as the Primary Caregiver

39.Mr Leung contended that the Mother’s wishes as primary carer of the Child should be given due consideration and weight.  On the other hand, Ms Kwan submitted that the Father has been very hands-on in the Child’s upbringing and the Child had spent a considerable amount of time with him and the extended family.  In W v F, supra the late Judge Carlson stated:

“20. But I need to consider the mother's position. She is the primary carer and I would have thought that that will be the case after all of this litigation is over and done with. The strength of her feelings, that it should be IMS and not CIS for the two boys, is not one that is borne out of malice …

21. … If I move Q, she is going to be very unhappy to the point, I believe, of being resentful. Those feelings will work their way to the children, which may affect their happiness and stability. This is a consideration that I am bound to have considerable regard to… It is a question of weighing all the factors that will impact on Q, either directly or, on him, through its effects on his brother and sister and on his mother with whom he spends most of his time.”

40.I consider that the Mother’s preference of Canossa over Shrewsbury is not borne of malice and that she has done her research including a school visit to Shrewsbury on 29 June 2021 where she talked with the teachers to learn more about the school, perused information about each school for consideration of what best suits the Child.  I find that she is the primary carer of the Child although the Father is a hand-on father.  I shall give more consideration and weight to her view based on her genuine belief that Canossa will provide a better education for the Child at this point of his life.

41.I also understand the Father’s wishes for the Child to go to a school that is less stressful for him since Canossa is generally more demanding in homework and assessments in comparison to Shrewsbury.  I think that the parties shall try their best endeavor to be liberal and open mind in case the Child is unable to cope with the stress due to the homework and assessments in Canossa.

Tailormade support by Shrewsbury to meet the Child’s needs

42.I agree that if Shrewsbury can give tailormade support to the Child, it would certainly be beneficial to him.  On the other hand, the Mother said that Canossa also has a stationed social worker and teacher specialized at counselling to cater the children’s educational and emotional needs. I disagree with the submission of Ms Kwan for the Father that the Child is not a “normal” child although I accept that the Child has experienced years of impact of his parents’ conflict and may need to call for treating psychologist for him.  In my view, all these kind of conflicts can be easily avoided if the parties try to cooperate with each other for the welfare and best interest of the Child. If they can do so, all the tailormade support or counselling from the school or psychologist treatment may be unnecessary. 

Conclusion

43.No doubt, Shrewsbury is a good school in and of itself.  However, insofar as it relates to the overall welfare of the Child, Canossa is the better choice and suits his needs more.  Having carefully considered all the relevant factors and in the best interest of the Child, I order that the Child to attend Canossa for the upcoming academic year of 2021/2022.

44.As to the question of costs, I see no reason to depart from the usual order, namely no order as to costs.  I now make no order as to costs as to this application including all costs reserved in relation thereto.

Petitioner:   Mr. Eric Leung instructed by M/S Ip & Heathfield

Respondent: Ms. Thelma Kwan instructed by M/S Chaine Chow & Barbara Hung