Hhy v. Lhw

FCMC 12621 / 2019

[2021] HKFC 194

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 12621 OF 2019

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BETWEEN

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J U D G M E N T
(Care and Control)

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1.This is an application made by the Petitioner Mother (“M”)  for care and control of the only child of the family, a boy (“TH”)  who was born in October 2015, which the Respondent Father (“F”)  opposes. 

2.Prior to trial, both Counsel representing the parties informed me that the matters of joint custody and long school holidays’ being split equally between them are not in dispute.  The only issue therefore is whether F or M would have care and control.

Family Background

3.Mr Leung representing M helpfully set out the history in his Opening Submission for which I am grateful.

4.M was born in July 1981 and F was born in August 1981 and they are both 40 years of age.

5.M graduated from the Hong Kong Polytechnic University with a Bachelor of Science (Honours)  degree in Physiotherapy.  She has been working as a registered physiotherapist at a private hospital in Kowloon for over 11 years.

6.M has the support of her immediate family.  Her father, the maternal grandfather of the child (“MGF”), is a retired civil servant and her mother, the maternal grandmother of the child (“MGM”), has all along been a full-time housewife.  M has a younger sister, aged 33, who is working as a pharmacist.

7.F was educated up to secondary school in Canada. He returned to Hong Kong with his family in 2007 and joined the Hong Kong Police Force in 2009.  He is currently employed as a police officer of the rank of a Police Constable.

8.The parties first met each other when they were in kindergarten.  They lost contact when their respective families emigrated to Canada.  In 2012, they reconnected through social media and began dating.  They got married in Hong Kong on 19 December 2014.

9.The only son (“TH”)  was born shortly after the parties’ marriage and since both parties were in gainful employment, TH was placed under the care of the paternal grandparents.  F and/or M would go to the paternal grandparents’ home to help looking after TH when they finished work.

10.The relationship between M and the paternal grandparents turned stressful because of their different child-care values and views.

11.Eventually, in or around August 2017 (when TH was almost 2 years old), M took TH back to their rented apartment at Sham Shui Po (“the former matrimonial home”)  and M became the main carer with the assistance of a foreign domestic helper.

12.The parties’ relationship started to deteriorate after they moved into the former matrimonial home and according to M, F did not return home to sleep for nearly two years.

13.On 28 February 2019, F without notifying M beforehand brought a psychiatrist to the former matrimonial home trying to conduct a clinical examination on M.  M refused and F reported to the police with an allegation of child abuse against M.  Eventually, M was admitted to Kwai Chung Hospital for psychological treatment.  She was diagnosed to be suffering from Obsessive Compulsive Disorder (“OCD”)  and Obsessive-Compulsive Personality Disorder (“OCPD”).  She stayed at Kwai Chung Hospital until 26 May 2019.

14.After her discharge, M found that F had completely blocked her from contact including telephone, whatsapp and email. Furthermore, M then found out that the contract of the foreign domestic helper had been terminated and F had also ended the tenancy agreement of the former matrimonial home.

15.M alleged that her investment property at Victory Skye should have been ready for occupation on 21 May 2019 but F refused to let her move into the new flat.

16.M therefore returned to her maiden home at Sham Tseng (“the Maternal Grandparents’ Residence”)  and she also returned to work as a physiotherapist in July 2019.  In the meantime, F and TH moved into F’s parents’ home in Cheung Sha Wan (“the Paternal Grandparents’ residence).

17.The first access of M to TH after her discharge was organised on 27 June 2019 at a parent-child centre for an hour.  The access arrangement of M having access once a week for one hour only continued until October 2019 when M was allowed to have access of one more day at the Social Welfare Office in Sham Shui Po.  From mid-November 2019 onwards, the access at the parent-child centre was varied to alternate Thursdays from 9:30 to 10:30 am and Sundays from 4:00 to 5:00 pm.

18.M filed a Petition on grounds of unreasonable behaviour on 3 June 2019, whereas F filed a Cross-Petition on 4 June 2019. Eventually, the parties agreed to file a fresh Petition under the present proceedings on grounds of ‘one-year separation by consent’.

Access Arrangement

19.By virtue of an Order made by me on 26 June 2020, M was granted access outside the Family and Welfare Centre on alternate Saturdays from 11:30 am to 5:30 pm and Sundays from 1:30 pm to 4:30 pm.  The pick-up would be at Parent-child Connect Specialised Co-parenting Support Centre (親籽薈)  and TH was to return to the Paternal Grandparents’ Residence.  M had to exercise access in the company of her parents and F was to be responsible for picking up and fetching TH.

20.By virtue of another Order made by me on 10 August 2020, I ordered that the parties do have joint custody with interim care and control to F and M was granted staying access on alternate Saturdays from 11:00 am to Sundays 5:00 pm and on the other Saturdays from 11:00 am to 7:00 pm.  The pick-up would be at the Paternal Grandparents’ Residence and the return would be at the lobby of the Maternal Grandparents’ Residence.  M had to exercise access in the company of her parents and F was to be responsible for picking up and fetching TH.  I also ordered that TH had to sleep with the maternal grandparents during staying access. For the rest of the days when M had no access to TH, she would have one FaceTime or telephone call with TH per day for not more than 45 minutes.

21.By virtue of another Order made by me dated 24 November 2020, M was granted: -

(i)  Daily telephone or FaceTime video call with TH for not more than 20 minutes;

(ii)  Staying access on alternate Saturdays from 11:00 am to Sundays 5:00 pm and staying access for the other weeks from Fridays 6:30 pm to Saturdays 11:30 am.  M had to exercise access in the company of her parents and TH had to sleep with the maternal grandparents during staying access;

(iii)  F and M were to share equally the long holidays for the coming Christmas and Chinese New Year (“CNY”). M would have the first half of the Christmas holidays and the second half of the CNY holidays.

(iv)  The pick-up would be at the lobby of the Paternal Grandparents’ Residence and the return would be at the lobby of the Maternal Grandparents’ Residence.  The pick-up and the return should be done by the maternal grandfather and F.  If F was not available, it would be done by the paternal grandfather instead.

22.By virtue of another Order made by me on 24 March 2021, paragraph (ii)  of the Order in the preceding paragraph in relation to staying access was varied as follows: -

(i)  M do have staying access on alternate Fridays from 6:30pm to Mondays 9am;

(ii)  M do have staying access on alternate Fridays from 6:30pm to Saturdays 3pm. (“the Up-to-date Order”)[1].

M’s Latest Open Proposal

1.  M shall have care and control of TH and F shall have the following defined access: -

(a) Alternate weekend staying access from Fridays after school to Sundays 8pm and Fridays after school to Saturdays 8pm;

(b) Day access every Tuesday and Thursday from 6:30pm to 8:30pm if F does not need to work; and

2.  F shall have telephone or FaceTime video calls with TH on those days when F is not with TH for at most 20 minutes;

3.  The parties shall equally share TH’s long holidays, i.e. CNY, Easter, Summer and Christmas;

4.  Public holidays other than long holidays shall be equally shared and conducted by each party in alternate years;

5.  F shall have access to TH on his birthday (for at least 3 hours if it falls on a weekday and 8 hours if it falls on a weekend)  and Father’s day from 11:30am to 8:30pm;

6.  Pick-up of TH for access shall be at the lobby of the Maternal Grandparents’ Residence by F and return of TH shall be at the lobby of the Paternal Grandparent’ Residence by M or M’s parents;

7.  There be a supervision order for 12 months with a progress report to be handed in 14 days before the return date of the review of the supervision order in 12 months’ time.

F’s Open Proposal

1.  During term time,

1.1  F shall have care and control of TH from Fridays after school until the following Monday mornings when TH attends school (and F shall be responsible for bringing TH to school);

1.2  For the rest of the week except the time specified in paragraph 1.1. above, M shall have care and control of TH; and

1.3  The arrangements set out in paragraphs 1.1. and 1.2 above can be reversed between F and M during a fixed interval of time (e.g. every 4 weeks or 6 weeks)  to be agreed by the parties.

2.  Long holidays of TH shall be shared by the parties equally.

23.While giving evidence in Court, F revised his proposal as follows:

(i)  F shall continue to have daily care and control of TH;

(ii)  M shall have access to TH, including staying access for the following period;

(iii)  There can be day access to M to TH between 6 pm and 8 pm on Tuesdays and Thursdays;

(iv)  The Saturday access may be extended to 8 pm;

(v)  Other than the abovementioned accesses, there can be online access once a week for 10 minutes;

(vi)  Long holidays (namely, summer holiday, Christmas and New Year, CNY and Easter)  shall be shared by the parties equally; and

(vii)   M’s access shall be in the presence of the maternal grandparents.

The law on care and control and access

24.The law on children generally can be found in the Matrimonial Proceedings and Property Ordinance (“MPPO”), Cap. 192, and the Guardianship of Minors Ordinance, Cap. 13. Section 19 of the MPPO states that:

(1)  The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18—

(Amended 69 of 1997 s. 28)

(a)   in any proceedings for divorce, nullity of marriage or judicial separation, before, by or after the final decree;

25.The general principles governing such applications are set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13, which states that:

(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 wishes 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;

26.In LACHY v. YC [2019] HKFC 152, HH Judge Sharon Melloy also set out a list of factors:

“15. In addition, reference can also be made to the list of factors found in the Children’s Proceedings (Parental Responsibility)  Bill. Although this list of factors has yet to find its way into our statute books, I have nevertheless reproduced the same below. I should say at the outset that it is not meant to be an exhaustive list, but is simply a useful guide when considering issues relating to custody, care and control, access, joint care and control/shared care and access and the best interests of children generally. The checklist states that the following matters should be taken into account by the court when determining matters of this nature:

(a)  the ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding);

(b)  the child’s physical, emotional and educational needs;

(c)  the nature of the relationship of the child with each of the child’s parents and with other persons;

(d)  the likely effect on the child of any change in the child’s circumstances;

(e)  the child’s age, maturity sex, social and cultural background and any other characteristics which the court considers relevant;

(f)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

(g)  any harm which the child has suffered or is at risk of suffering;

(h)  any family violence involving the child or a member of the child’s family;

(i)  how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(j)  (a broader formulation along the lines of)  the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(k)  the range of powers available to the court under this Ordinance in the proceedings in question.

(l)   any other fact or circumstance that the court thinks is relevant.”

27.It is acknowledged that it is not generally necessary to go through this list mechanically, but that it can be a useful aid memoire for the court and that it can assist in the decision making process.  

Wish of TH

28.As TH has been diagnosed to have Global Development Delay, his view cannot be ascertained.  It is however noted in the 1^st Social Investigation Report prepared by Ms Fok that TH is attached to both parents (喜歡親近父母).

Social Investigation Reports

29.There are altogether four reports, all prepared by Ms Fok: -

1.  Report dated 11 June 2020 (1^st SIR);

2.  Report dated 31 July 2020 (“2^nd SIR”);

3.  Report dated 9 November 2020 (3^rd SIR”); and

4.  Report dated 9 March 2021 (“Final Report”).

30.In the Final Report, Ms Fok recommended that there be joint custody with care and control to F and defined access to M as follows: -

(1)  General access

(i)  M can have staying access on alternate Saturdays from 11am to Sundays 5pm;

(ii)  Staying access on alternate Fridays from 6pm to Saturdays 5pm;

(2)  Long holidays staying access

(i)  Long holidays including CNY, Easter and Christmas)  to be shared equally between the parties with both parties taking turns to have the beginning half and the latter half.  The time of the commencement of staying access from 11am on the first day and the last day up to 5pm;

(ii)  In relation to the summer holidays, TH is to stay at F’s in alternate weeks and at M’s in the other weeks.  The time for the staying access is to commence at 11am and the last day up to 5pm;

(iii)  F is to confirm the arrangement with M 3 days before the relevant long holidays.

31.There are also three Psychological Reports prepared by different professionals: -

(1)  Psychological Report dated 17 November 2020 prepared by Dr Rhoda Yuen (“Dr Yuen’s Report”)[2];

(2)  Psychological Report dated 5 March 2021 prepared by Professor Lam (“Professor Lam’s Report”)[3]; and

(3)  Psychiatric Report dated 20 May 2021 prepared by Dr Chow Kit Wan Kavin (“Dr Chow’s Report”)[4].

32.Dr Yuen’s report was called by me as a result of an interim application made by F after the making of my Order dated 10 August 2020.

Interim application by F

33.In the morning of 9 October 2020, which was a Friday, F took out an Ex-parte Summons (with Notice)  urging me to suspend the day and staying access granted to M and instead grant to M access on Saturdays from 2:30 pm to 4:30 pm at Parent-child Connect Specialised Co-parenting Support Centre (親籽薈)  under the supervision of an officer of the Hong Kong Family Welfare Society (“the said application”).  I granted leave for the said application to be heard at 2:30 pm on that day.

34.In F’s Affirmation in support of the said application, he said,

“The Son’s Condition since the Commencement of Access Arrangements Pursuant to the 10^th August 2020 Order

16. However, since the commencement of the access arrangements after the grant of the 10^th August 2020 Order, the Son’s psychological condition has become disturbed and unstable, and I shall give the particulars as below.

17. The following is a schedule of the Petitioner’s accesses to the Son since 10^th August 2020: -

17.1 15^th August 2020 – 16^th August 2020 – staying access. On this occasion, when it reached 5 pm on 16^th August 2020, the Son demanded to return to My Residence and he kept on saying “驚呀!”;

17.2 22^nd August 2020 – day access. When the Son was delivered to the Petitioner at the lift lobby of My Residence, the Son demonstrated his unrest and fears;

17.3 29^th August 2020 – 30th August 2020 – staying access. When the Son was still in My Residence, knowing that he had to go to the Petitioner’s place for access, he started to scream and cry aloud. Moreover, when the Son was handed over to the Petitioner at the lift lobby of My Residence, he started to cry loudly when the Petitioner held him up;

17.4 5^th September 2020 – day access. When the Son was told to change clothes for going to the Petitioner’s place, the Son started to cry loudly. Time was taken to comfort the Son. However, when the Petitioner held him up at the lift lobby of My Residence, the Son started to cry again;

17.5 12th September 2020 – 13th September – staying access. Arrangement was made with Mr Cheung of FCPSU/Sham Shui Po and Madam Fok for observing the process of delivery at 10:30 am on that morning. When the Son knew that he had to go to the Petitioner’s place, the Son demonstrated his fears and cried non-stop. The Son also repeatedly uttered that “唔去媽咪度, 驚呀!”. Moreover, while waiting at the lift lobby of My Residence, the Son just kept on crying and the Petitioner appeared at around 11:15 am that day;

17.6 19^th September 2020 – day access. The Son started to cry loudly and say “唔去媽咪度, 好驚媽咪呀” once he was told to get himself prepared to go to meet up the Petitioner on that day. When the Son was down in the lift lobby of My Residence, he was still crying. On that occasion, only the maternal grandparents came over to collect the Son. When the Son was in the arms of the maternal grandmother, he was still crying;

17.7 26^th September 2020 – 27^th September 2020 – staying access. In the morning on 26^th September 2020 when the Son knew that he would go to the Petitioner’s place, he started to cry aloud. When he was waiting at the lift lobby, there was only the maternal grandmother there but not the Petitioner. The Son demonstrated his unrest and fears. When the Son returned home on 27^th September 2020, the Son immediately said that “我要快啲返屋企, 46A, 唔去媽咪度, 驚呀。”;

17.8 3^rd October 2020 – day access. At the time when the Son knew that he needed to go to the Petitioner’s place for access, he started to cry and kept saying “好驚媽咪, 唔好去媽咪度”. At about 7:00 pm, I went to Sham Tseng to pick up the Son, the Son kept saying in my car “要返46A, 唔返媽咪度”. I asked the Son why he said so, he told me “驚媽咪影相, 好殘眼! 好殘眼! 好驚呀, 好驚媽咪!”

18. In essence, since the commencement of the access arrangement made on 10^th August 2020, the Son has repeatedly expressed his fears and great reluctance to go to the Petitioner’s place. There were also occasions in My Residence on which the Son became unrested when it was mentioned that he needed to go to see the Petitioner during weekend. There is now produced and shown to me….a USB containing 13 video clips of the Son showing his reactions on the occasions of the handover of the Son to the Petitioner for the weekend access.

19. To put the record straight, neither have I nor any of my family members ever discouraged the Son to go to see the Petitioner.  Nor have we ever attempted to coach the Son to demonstrate his fears to his mother at all.  Indeed, I verily believe that when the Court spend time on watching these video clips, the Court will come to the conclusion that the Son expressed his fears and unwillingness out of his natural and truthful feelings as a boy of 5 years’ old.”

35.As a matter of fact, even though the hearing of the said application was urgently fixed, I watched the videos in the USB in Court in the presence of the two legal teams and the parties. 

36.After watching the videos, I am not satisfied that TH was in fear even though it was captured in the videos that he cried.

37.Mr Cheng, who was then representing M, submitted to me some videos showing that TH spent time happily with M during access time.

38.After watching the videos, I agreed that TH was happy with M.

39.Mr Cheng also submitted that without leave of the Court and contrary to the interests of TH, F had unilaterally engaged two doctors to procure psychiatric assessments of TH solely for the purpose of the said application.

40.In the 1^st report written by Dr Cindy Chiu dated 4 October 2020, it states[5],

“1. This report was prepared upon the request of F. TH has consulted me for three times at my clinic….on 3^rd of September 2020 (1 hour 20 minutes), 14^th of September 2020 (30 minutes), and 29^th September 2020 (45 minutes)  respectively.”

41.In the 2^nd report written by Dr Mak Kai Lok dated 7 October 2020, it states[6],

“6. After the first overnight stay arrangement with his mother, TH reported that he was very afraid of his mother upon his return on 16^th August 2020. Since then he would become extremely emotional whenever he was brought to meet up his mother or his maternal grandparents during every weekend. He would cry bitterly when he was dressed up by his father or paternal grandparents upon the scheduled meeting time with his mother. He would even demonstrate tempers and yell to them.

7. In view of such behaviour, TH was brought to see Dr Cindy Chiu, private psychiatrist for assessment on 3^rd September 2020.

8. He was then brought to see me for the first time on 8^th September 2020. A 90-minute interview was conducted with TH, his father and his paternal grandmother.

9. He was arranged follow-up on a bi-weekly basis until 6^th October 2020. A total of 3 visits with comprehensive assessments lasting for 90-minute each were conducted.

10. During each visit, both father and paternal grandmother were interviewed with H first for an hour and TH was interviewed alone for the next thirty minutes during each visit.”

42.Looking at the content of the two reports, I agreed with Mr Cheng that having 6 interviews/assessments within a short period of 5 weeks with specialists was not in TH’s interests.

43.Pausing here, it is interesting to note that Dr Mak Kai Lok was the doctor who was brought by F to the former matrimonial home forcibly taking M to Caritas Medical Centre for examination on 28 February 2019, resulting in M being admitted to Kwai Chung Hospital for a few months.

44.I do not accept the views of Dr Cindy Chiu and Dr Mak Kai Lok as both the reports were prepared without the involvement of M.

45.As to Mr Cheng’s oral submission that the said application was taken out by F on that day which was TH’s birthday and before M’s right of staying access the next day, I did not take those into account when I made my decision.

46.In my view, however, there was not a single ground that supported F’s case.  I therefore dismissed the said application with costs against F personally despite that he was legally aided.  I also ordered that a jointly instructed psychological report be prepared to assess the impact on TH of M’s access.

47.As a result, Dr Rhoda Yuen (“Dr Yuen”)  submitted a report dated 17 November 2020 to Court.

48.In Dr Yuen’s Report, she said that there were four interview sessions scheduled: “starting with an individual session with TH for baseline data, followed by two observation sessions for father-child interactions and mother-child interactions respectively; and a last individual session with TH again on a Sunday morning after he had spent an overnight visit with his mother.”

49.In Session 1, Dr Yuen said,

“7. In the "Tell a Story" game where the surface of each of the many blocks has a picture showing a figure, an object, an action, an emotional expression, or a situation. When shown a block with a child hiding behind a woman's legs, he said "it's me hiding behind mommy". He soon was losing interest with other picture blocks. But when shown a block with the profile of a well-dressed young woman, he said "this is mommy" but wanted to throw it away. He tried to push all the blocks away and in the process, he took the "mommy" block and heaped the rest of the blocks on top of it, saying "let's round her up here (困住個媽咪係度). When asked to elaborate further, he (the Son)  would mumble very softly, “驚媽咪" and moved onto loading up his favorite tow truck and later went about drawing. He was at ease and happy when the session ended.”

12. Session #4 took place on a Sunday morning after TH had stayed with his mother overnight. He was observed and interviewed alone. His mood was calm and picked up a book "Love You Forever" to read. When asked if the mother in the book was like his mother, he responded"驚媽媽… 唔使驚．少少驚媽咪陪你聽歌…望住TH瞓覺…＂He mentioned that he was sleeping with grandmother and later said they would"去香港…坐 rainbow tram ... 宜家無驚…媽咪好錫TH＂.

50.According to Dr Yuen’s analysis, there is a strong father-and-son bond between F and TH.  In relation to why TH cried when he left home for M’s place, she said,

“15. In order to minimize TH getting upset when going through the hand-overs, the parents need to understand that the actual move from one household to another can be a very hard time for their child. Reunion with one parent means separation with the other. To make the transitions and visitation easier, F and M have to take steps bearing the best interest for TH in mind, such as helping him to anticipate change a day or 2 before the visit, allowing him to carry with him a familiar reminder of comfort, establishing a routine when the son returns.

Conclusion and Recommendations

19. Based on observations in the 4 interviews, there was no evidence of any harsh/inept parenting of the M. TH was well cared for and well settled in the presence of M and her parents, within two hours of their picking him up for access as well as after TH's overnight stay with her mother and grandparents.

20. F was very concerned about M's staying access to TH, fearing that it may incur psychological harm to the son when he is still too young to express himself. It appeared that most of TH's adverse reactions were more related to the circumstances of the transition and handover. Maybe F and his parents' fear that TH may have a chance to get hurt again could add to the atmosphere of tension prior to the handovers and visitation. To help allay TH's fearful reactions in separation, it is imperative that F and his parents stay calm and positive themselves and help TH anticipate change a day or two before the visit. Helping him pack in advance and encouraging him to bring a familiar object would be beneficial.

21. On her part, M could help reduce TH's fearful reactions in the transition by establishing a routine every time right after she picks him up for access, so that he knows exactly what to expect when he came to her for access.

22. In order to help allay TH's disorganized attachment behaviors in which conflicting approach-avoidance reactions were manifested in his relationship with his mother, M has to gain insight into his behaviors and put in needed effort to amend the unhealthy bond between her and her son.”

51.Based on Dr Yuen’s Report, TH cried during the transition not because of his fear of M.  Dr Yuen came up with the conclusion that most of TH's adverse reactions were more related to the circumstances of the transitions and handovers,

52.I accept that.  In the 3^rd SIR, Ms Mak also said,

“16. 在翌日， 9 月13 日（星期日）下午，調查主任亦進行了另一次雙方交接當事兒童的觀察，調查主任於下午4 時30 分到達M的居所。調查主任到達時，TH與M正在玩乘搭交通工具的遊戯，他們利用地墊、兒童桌椅和家居物件棋仿成不同交通工具，TH扮演司機，而M扮演乘客，二人在客廳走來走去，玩得投入，沒有隔膜。在4 時45 分，外祖母提醒時間差不多要更換衣服準備回家，TH表示「唔好」、「唔換衫」、「玩多陣」，M回應「玩多陣」，於是TH便取出玩具車玩，M希望加入，TH堅持玩具車依照他的方法排列，期間外祖母和M再提醒TH更換衣服時，TH仍然表現抗拒，他一邊手持玩具車，使用手指撥動車輛，專注地看著車輛，一邊說「唔好」「玩多陣」。當再提醒時，TH站起來退到牆邊和叫著「唔換衫」，然後哭起來了，M見狀立刻抱起兒子安慰表示「最錫TH，好快又會再見」，TH邊哭邊說「唔換衫」，外祖母趁機替TH更換褲子和鞋，然後大家離開住所。在升降機內，TH的情緒已平靜了，他平靜地倚箸母親， F及祖父母已在地下大受等待，祖母接過TH，M和家人便慢慢的離開，雙方沒有交流。”

53.According to Ms Mak’s observation, TH also cried when he had to leave his mother.  I therefore hope that in the best interests of TH, if TH cries again during transitions, both parents should follow Dr Yuen’s recommendation.

Is M a suitable carer?

54.In this case, it is an undeniable fact that M had OCD and OCPD.  The main issue is whether she has recovered to the extent that she is capable of looking after TH as a main carer.

55.Mr Chow representing F submitted in his Opening Submission,

“M’s unreasonableness in the Caring of TH

19. First of all, F is concerned that M is abusive towards TH and she would hit and scold TH even when TH made very minor mistakes.

20. M has a tendency to grab or pick up TH forcefully, and TH expressed his fear of M. F observed weird and unreasonable of M against TH.

21. M’s behaviour has raised the concerns of social workers and the police. The behaviour of M against TH was reported as a neglect and psychological child abuse after a “Multi-Disciplinary Case Conference on Protection of Child with Suspected Abuse” (“MDCC”).

22. It was confirmed in MDCC that M was negligent in taking care of TH and emotionally abused TH. In MDCC report, it was suggested TH should continue to live with F and his paternal grandparents to maintain a stable living environment for TH who has special needs.

23. Further, F is gravely concerned that with M’s diagnosis of OCD and OCPD would cause severe stress to TH. M’s extremely high hygiene standard would cause discomfort to TH and adversely affect TH’s health and development.

24. There is a real risk that if M gets care and control of TH, TH’s psychological condition would be disturbed, taken into account of TH’s Global Development Delay, he may not have the ability to fully express his preference and feelings.

25. It is noteworthy that M is facing criminal charges against her in relation to her treatment of TH in the past. The Prosecution will not easily lay charge against a person unless there is reasonable prospect of conviction (in particular, in the present case there had been a substantive period of time of investigation).

26. Accordingly, contrary to what M has attempted to play down, her own physical/mental problems and maltreatment of TH thereof and the adverse impact on TH cannot be lightly taken.

27. This also further gives rise to the question of, if M is given substantial access to TH at the moment, whether M can realistically be handling the pressure resulting from the caring of TH.”

56.In F’s Affirmation dated 17 July 2020[7], F alleged,

“17. The Petitioner constantly and repeatedly performed cleaning at the Matrimonial Home, and in particular, she performed cleaning even at dinner time until late in the evening, and hence she started dinner only very late at night. The Petitioner sometimes even performed cleaning overnight.

18. The Petitioner would use massive volume of Dettol (滴露)  to clean the house, the Son’s clothing, toys and school bag. The Son’s teacher at the kindergarten also always complained that the Son’s uniform and school bag have very strong smell of Dettol. The Petitioner would even use Dettol to clean the Son’s face and hands.

22. As to the Son, the Petitioner interrupted the Son’s sleeping time by waking him up in the midnight and showered him.

23. The Petitioner would not allow the Son to walk on the floor, she would restrict the activity area of the Son only on the playpen and the baby high chair.

24. There was on one occasion that the Son threw his blanket on the floor, the Petitioner was extremely angry and scolded the Son, since then the Petitioner never allow the Son to have blanket and pillow to sleep with, even in the winter.

25. In winter or cold weather, the Son was not allowed to wear warm-keeping underwear. The school teacher of the Son also did express their worries that the Son did not wear underwear in winter.

26.  The Son was not allowed to play toys, the only toys that the Son has were 3 mini toy cars which were all bought by me.  The Petitioner never bought toys for the Son to play, almost all toys were bought by me.  The Petitioner would not allow the Son to play with the toys I have bought (except the 3 mini toy cars).  However, the Petitioner would request me to show the toys I bought for her to take photos.  She only let the Son holding the toys for the photo-taking time, after taking photos, she would immediately sanitize the toys with strong Dettol and then put back the toys in the bedroom and stored them….”

57.M in her Affirmation filed on 5 August 2020, however, said[8],

“15. I admit that I was suffering from Obsessive Compulsive Disorder as diagnosed by various psychiatrists during the period from 2018-2019 when those incidents happened and the Respondent make full use of the incidents as allegations against me for child abuse. I also had depression in which I could hardly tell anyone about this. The Respondent had arguments with me almost every single day. He said rude words to me whenever we had arguments. His parents did not know the whole picture. I kept myself physically working at all times so as to relieve my mind from thinking too much. I could hardly stop cleaning once my cleaning routine had started, and this condition kept repeating and it had eventually become a disorder. I was a normal person before my marriage with the Respondent. The Respondent was a trigger to my sickness. By deciding to divorce with the Respondent, I strongly believe that I have recovered and I will continue to receive treatment and take medicine as prescribed by my psychiatrist.

16. I reiterate that my emotion was greatly affected by the Respondent during that period. I was depressed, frustrated and I could hardly control my temper. I was incapable of coping with this type of pressure. I love my son a lot but I just could not control my temper whenever he did something messy. I scolded him but then I felt very sorry and regret afterwards. When I replayed the CCTV video, I was shocked to find out that I was overly rude in handling our son. It seemed that I was out of control and my character had changed completely and I would say that woman was not me at all. I did not disclose our problem to my parents as I did not want them to worry.

17. Our son always threw his blanket and pillow on the floor, so instead of giving him blanket and pillow, I turned on the heater in the sitting room during winter and gave him warm clothings at home. I did not have ill intention to abuse our son. There was a certain time which I found his blanket contaminated by the stinky smell of the cod-fish liver oil, thus I washed his blanket at night to remove the stinky smell. Meanwhile, our son had thick school jacket on top of his school uniform at school, therefore I believed it was not necessary to wear underwear inside. It was not a must to wear underwear in school.

19.  I disagreed with the Respondent saying that I did not allow our son to play with toys.  The fact is that I allowed him to play several toys each time instead of taking out all the toys for him.   Our son played toys, watched cartoons, sing nursery rhymes, watered plants and sometimes did drawing and coloring activities when he was having dinner.”

Discussion

58.It is not in dispute that M has been charged with child abuse.  In M’s 2^nd Affirmation filed on 4 June 2021, she said[9],

“34, I was previously under police bail for any possible criminal charges against me for what happened in February 2019 to my son. After many months of investigation and renewal of police bail, I was formally released from police bail in around August 2020. However and to my shock, on 15^th May 2021, I was suddenly informed by the police that they would charge me with 3 counts of 對所看管兒童或少年人襲擊. I am currently seeking legal advice as to how to deal with these criminal charges. I wanted to reveal to the police my previous OCD, how I have been receptive to treatment and also that I am now in stable condition and remission but the Respondent had been uncooperative and unreasonable refused to consent to my intended application under Rule 121 of the MCR for leave to use some relevant documents filed in these proceedings for the purpose of seeking legal advice at the beginning and he only gave consent after few rounds of correspondence and at the end had to ask me to pay his costs of the Consent Summons….

35.  I attended the 1^st hearing at the West Kowloon Magistracy today for the criminal charges and the Magistrate has granted an adjournment to 13^th August 2021 for mention and plea so that I can make representations to the Department of Justice for plea bargain.”

59.Mr Leung confirmed in his oral submission that M would plead guilty to the 3 charges and after plea bargain, she would be bound-over.  In his Closing Submission, he said,

“106….the Magistrate Court has formally made a bind-over Order on the 3 criminal charges brought against the Mother.”

60.Mr Chow in his Closing Submission submitted,

“9. the basis of such disposal of criminal charges must be that the defendant admits the facts that he/she had done something to assault/maltreat the child or juvenile concerned. the basis of such disposal of criminal charges must be that the defendant admits the facts that he/she had done something to assault/maltreat the child or juvenile concerned…As far as F (as the complainant)  is informed of the case result by the Police, M was bound over on the condition of HK$2,000.00 for each of the counts for 2 years (which is the maximum term for bound over).”

61.For my part, I have no doubt that M had done something harmful to TH.  The question, however, is whether M has fully recovered.

62.Mr Chow in his Reply Closing Submission said,

“41. …first of all, as all the experts said, the bases for M to take care of the Son are her continuous compliance with medication and her family support.  Contrary to what it submitted on M’s behalf, no one had said that M is “fully recovered” as such.”

63.In the Psychiatric report prepared by Dr Chow (“Dr Chow”)  dated 20 May 2021 which is a report jointly instructed by M and F as ordered by this Court to assess M's mental condition and whether she is suitable for taking care of a young child.  Dr Chow said[10],

“16. PSYCHIATRIC HISTORY

16.1. M was new to the mental health services. She had no history of suicide or violence.

16.2. M described herself as being organized, disciplined and liked things in orderliness. Her activities of daily living, interpersonal relationship, school and work has all along been maintained well without being affected by her above traits. Her mood has been stable throughout these years.

16.3. M said she became upset because of the in-law conflicts and deteriorated marital relationship. She said F did not live with her and felt him not supportive. She was also distressed by the poor performance of the helper.

16.4. She became more concerned about cleanliness after her son was born. The condition worsen after her son was under her care and when her son entered kindergarten. She became more anxious and wanted things to be cleaned and in orderliness. She repeatedly washed clothes with detergent by hands before putting them into the washing machine. She also cleaned the books and school bag of her son repeatedly, for fear of dirt and contamination. She kept her son in highchair or playpen for fear of dirt and disorderliness made by him. She did not give pillow to her son as he often threw it to floor. She bathed her son once after school and once at around midnight after he finished dinner and homework. She admitted she had hit TH and had left him alone at home as she expected the helper was on the way home while she was hurrying to go to work. She expected that F would communicate with the helper for her performance.

16.5. M was distressed by her repeated washing and cleansing behavior, and she needed to spend long hours in childcare. She was unable to resist for fear of dirt and disorderliness. and she started to have skin problem because of her repeated washing. She was aware that she might have problems for her repeated washing behavior, but she did not aware the need for medical care. She believed her problem would get improve later. M said F had suggested her to see doctor but she did not listen to him as she felt F tended to challenge her because of their poor relationship. M reported that her mood was otherwise stable. Her sleep and appetite were maintained. She was able to cope with her work. She had no suicidal or violent idea.

16.6. In November 2018, M said a social worker, whom she believed was a school social worker, had paid a home visit to her family. Another social worker paid home visit again on 26 February 2019. The social worker found her son sitting on the sofa and felt scared when he was asked to go to floor, and the toys were all stored. The social worker suspected her having problem and suggested F to seek psychiatric help for her.

16.7. Two days later 28 February 2019, a psychiatrist was arranged to her home at 9pm without her knowledge and she was shocked. She kept herself in the room and refused to see the doctor. Police was called and she was sent to Caritas Medical Centre. She was subsequently admitted to Kwai Chung Hospital (KCH).

16.8. M was admitted to KCH from 1March 2019 to 16 May 2019 for suspected obsessive and compulsive symptoms affecting her childcare ability. According to the report prepared by Dr LAU Wai Kay Vicki on 7 October 2020, M was diagnosed as Obsessive Compulsive Disorder (OCD)  with features of Obsessive-Compulsive Personality Disorder (OCPD). A Multi-disciplinary Case Conference was held on 30 April 2019, child neglect and psychological child abuse was established.”

64.As to the treatment that M received after her discharge, Dr Chow said,

“16.9. After discharged from KCH, M attended psychiatric follow-up at West Kowloon Psychiatric Centre (WKPC)  regularly and she was given antidepressant medication Fluoxetine 50mg daily. She also received treatment and support from Clinical Psychologist, Occupational Therapist and social workers. She was reported as being cooperative and compliant with treatment. Her prognosis was reported satisfactory for her improved insight with good compliance to treatment and high motivation for recovery.

16.10. M also attended treatment with private psychiatrist Dr. Henry W. M. KWOK since 5 September 2019 till December 2020. Dr KWOK prepared a psychiatric report on 30 March 2020, which stated that M’s OCD was in good remission. Her mental condition was stable and was mentally fit to have full access to all the information related to her son's education and health issues. M was referred by Dr KWOK to Clinical Psychologist Dr Sammy CHENG for assessment of suspected personality disorder and she was also referred to Occupational Therapist Ms. LAU Wah Chun, Medina for assessment on her capacity in taking care of her son.

16.11. Clinical Psychologist Dr CHENG in his report dated 27^th April 2020 opined that M had an obsessive personality trait and a mild level of OCD, and a definite diagnosis of OCPD was not warranted for her. He also opined that M had no definite impairments shown resultant from her obsessive-compulsive personality trait.

16.12. Report prepared by Occupational Therapist Ms. LAU dated 27^th May 2020 stated that M had acquired general knowledge and skill of childcare. She has exhibited love and strong motive to take responsibility of a mother. Her parents were committed to give her full support both in M’s mental recovery and in taking care of her son.

16.13. Another report prepared by Dr Henry W. M. KWOK on 10^th June 2020, which stated that mental condition of M was stable.

16.14. In another report prepared by private psychiatrist Dr LIN Hoi Yun Candy dated 28^th May 2020, Dr LIN also opined that mental condition of M was stable and her OCD was in remission. Dr LIN commented that M 's previous inappropriate handling towards her son was likely due to the influence of her psychiatric illness, and the psychiatric symptoms adversely affected her childcare ability and judgement. Her OCD was in remission and she was psychiatrically fit for childcare.”

65.As to M’s past behaviour to TH, Dr Chow said[11],

19.4. Regarding her previous behavior towards TH, M showed remorse towards it. M also showed insight towards her mental problem.”

66.Dr Chow then formed the opinion,

“21.6. With all the information available, together with the two interviews with M and her parents, it is my opinion that M has Obsessive Compulsive Disorder and is currently in remission. Her previous inappropriate acts towards TH were related to her untreated psychiatric symptoms including obsession and compulsion.

21.7. M has been receiving psychiatric management since March 2019 and she complied well with medication treatment. Her parents have all along been supportive to her and they both love and care TH. Both psychiatric history and mental state assessments did not find M of having any active obsessive and compulsive symptoms, and there has no imminent risk to herself and others including her son TH.

21.8. In view of the above, with her stable mental condition and supportive family, M is assessed as mentally fit to take care of a young child.”

67.In light of her opinion, although there is no mentioning of the words ‘fully recovered’, I am satisfied that M is in remission.  I find that M is capable of being the carer of TH.

68.When asked by this Court the chance of relapse of M’s mental condition, Dr Chow said in her oral testimony that it was unlikely as her symptoms were found out early and she had the assistance of medication and psychological treatments.

69.Mr Chow in his Closing Submission reminded me that according to Dr Chow’s oral testimony, M will relapse in the event that further pressure is added to her resulting from the caring and education of TH[12].

70.For my part, I am of the view that the possibility of M’s relapse is low.  After her discharge from Kwai Chung Hospital, M was facing immense pressure upon discovering that the tenancy of the former matrimonial home and the contract of the domestic helper had been terminated.  She also realised that TH had been taken away from her care and she was only allowed limited access resulting in her commencing matrimonial proceedings against F.  She was also facing criminal charges.  However, according to all the professional opinions, M is in remission.

71.In the report prepared by Ms Medina Lau, a registered Occupational Therapist, dated 27 May 2020,[13] she said,

“The onset of disorder is likely related to the stress of marital relationship, inharmonious relationship with parents-in-law and incompetence in child rearing. If all these unfavourable factors can be removed or under controlled, Obsessive-Compulsive behaviour and outburst of emotion will then be controlled too. Besides, support given by M’s parents can be favourable factor to prevent relapse and reduce possibility of child negligence.”

72.I accept that those factors that caused the onset of M’s disorder have already been removed. M is now living with her parents who have been supporting her and she also enjoys a stable job which she has had for 11 years.  As stated in Dr Chow’s report[14],

“SECOND CONSULTATION WITH M AND HER FATHER ON 15^th MAY 2021

19.1. M and her father came to the clinic on time. She was calm and cooperative during the interview. Her speech was relevant and coherent. Her mood was neutral. She did not report any excessive preoccupation with dirt or contamination. Her father did not find her having inappropriate or excessive washing and cleansing behavior. Her mood was observed stable.

….

19.3. A reference letter from M's work senior dated 14^th May 2021 commented that M is a hardworking and cooperative team worker in general, and she has demonstrated satisfactory rapport and communication with her co-workers.”

73.I therefore do not consider that M will face further pressure.

Care and control should there be a change of the status quo?

74.Ms Mak said in her oral testimony that she made the recommendations in the Final Report because she was of the view that TH should have a stabilised living environment (穩定的居住環境)  and main carer.  In the Final Report, she said,

“23. TH被評估為發展遲緩，是個有特殊學習需要的兒童，他需要父毋及照顧者的愛護、穩定規律的生活模式及持續的訓練方能健康成長。在聆訊開始以來，調查主任觀察TH的整體發展和照顧安排，認同父親及祖父母能為TH提供適當的照顧及穩定的成長環境，現階段並不合適改變孩子的居住和照顧的安排。不過，對TH長遠的發展和成長來說，除了保持TH與非同住一方穩定的探視外，更重要的是父母及照顧者能理解和接受TH的發展需要，從兒童最佳福祉角度出發，放下成見和怨懟，改變逃避及埋怨的溝通方式，以開放的態度共同應對問題及商討兒子的教養事宜。”(my emphasis added)

75.However, Ms Mak also said in the Final Report[15],

“8. 學趣滿園黃姑娘表示有關TH的訓練安排和聯絡，一直由祖母負責，彼此合作關係良好，但自去年11月起，其訓練人員感覺到與家人合作和溝通關係產生了變化，TH主要由祖父負責接送到中心接受訓練，祖父母在接送以外均沒有留下觀課，而電語聯絡跟進亦不常成功，使訓練人員難有機會與照顧者溝通TH的訓練進度。黃姑娘曾表示希望與TH父親通電商討TH情況和跟進計劃，無奈祖母表示F工作繁忙，一直沒有向學趣滿園提供F的聯絡方法，故治療團隊只能透過祖母向TH父親轉達TH情況，他們不確定F對TH的了解如何。黃姑娘表示祖母不時向他們表達TH已較早年有明顯進步，祖母對TH照顧無微不至，但她似乎未能真實理解和接受TH的困難及需要。黃姑娘及于老師均對於TH在升讀小一的適應情況感到憂慮。另外，TH的外祖母及母親曾分別致電學趣滿園了解TH的狀況及訓練進度，黃姑娘表示由於機構未有取得F一方授權透露資料，黃姑娘未能與外祖母及母親商討TH的情況。

9.為提升TH在語言能力，學趣滿園特別於2021年l月至4月期間增加了六節由言語治療師提供的一對一的訓練給TH，訓練安排於星期六下午在樂富中心進行，每節課45分鐘。學趣滿園黃姑娘表示在首次訓練(2021年l月16日)前兩天收到祖母的電括通知TH不會出席言語訓練，祖母解釋未能安排接送，而且考慮疫情因素，他們會為TH在居所附近參加相類訓練。調查主任向F了解情況，F表示因疫情嚴峻，他已安排其他私人課程給TH，當調查主任向F進一步查詢課程內容及會否通知M安排接送，F反質疑調查主任查詢原因，強調他可以選擇私人課程，而且他有經濟能力支付私人課程的費用。其後，按F所提供私人課程資料，調查主任曾向該學習中心作出查詢，TH所報讀的幼兒語言提升課程是由幼兒教師任教的小組課程，並非針對TH個別需要的訓練課程。調查主任再一次提醒F言語治療師的訓練對TH的語言發展十分重要，並建議他聯絡學趣滿園及與M溝通安排訓練和接送。學趣滿園一直將言語訓練的時段預留給TH，但F在l 月及2 月份均沒有安排TH參加在星期六下午進行的言語訓練。直至本報告提交前，學趣滿園黃姑娘通知調查主任TH在3 月6 日出席言語訓練，他由祖父負責接送到中心接受訓練。不過，F一方始終沒有與M溝通有關訓練安排。”

76.In the Clinical Psychological Report prepared by Professor Lam, she also said[16],

“8.3 于老師表示祖母因TH父的工作繁忙，所以一切訓練由她主力跟進。于老師觀察TH K2 時各方面發展已顯著遲緩，認為有迫切需要讓其父親了解他的情況，所以於K3 開學初期與父親及祖父母會面，以講解TH的發展，並就重讀K3 或升讀小一作準備。當時家長堅持讓TH升讀小一，並拒絕在入學申請表中標明TH有特殊學習需要。另外，鑑於TH有顯著的言語發展遲緩，耀能協會於2021年1 月超間週六下午為TH提供言語治療。無奈祖母卻以未能安排人手陪同TH前來為由，一直缺席有關的言語治療。最後，于老師表示她曾多次鼓勵家長安排TH接受兒童體能智力測驗中心的評估，但祖父母及父親均未曾告知她其實初步評估已於2020 年10 月完成。”

77.When Paternal Grandmother (“PGM”)  was questioned by Mr Leung why she refused to let 黃姑娘contact F, she said,

“問：呢度其實講緊第8段，我想妳睇嘅，就係係由第三行，咁佢就話「黃姑娘曾表示希望與TH父親通電商討TH情況，同埋跟進計劃，無奈祖母」，即係妳喇，「就同佢表示F工作繁忙」，見唔見到呀？

答：見到。

問：「一直沒有向學趣滿園提供F嘅連絡方法。」

答：呢度我唔係好明白黃姑娘點解會咁樣寫囉，因...

問：黃姑娘點解會咁樣寫，就係因為佢問妳可唔可以攞--問妳攞F嘅電話，但係妳同佢講，就係話「我唔畀妳喇，因為F工作繁忙。」

答：我冇咁樣講話唔畀佢，因為根本黃姑娘都有F嘅電話，同埋佢哋都有好多聯絡方法嘅，又可以email。

問：即係妳話黃姑娘講緊大話？

答：我諗係有啲誤會啫，可能黃姑娘有時搵佢搵唔到，即係亦都唔係即時搵到，但係都會覆番佢嘅，我哋都會覆番黃姑娘。

問：妳嘅意思係黃姑娘問妳攞佢電話嗰時，妳冇同佢講過話「F工作繁忙」？

答：工作繁忙，我係--唔係咁直接講話工作繁忙，我諗我應該係有時話F有時因為工作關係，唔係即時聽到電話，或者收信號收得唔好，未必即時可以聽到羅--黃姑娘電話。

問：咁但係似乎睇番妳第8段呢度，黃姑娘嘅講法唔係凈係--即係一次聽唔到電話，一次聯絡唔到佢，其實係完全聯絡唔到佢喎，因為如果妳睇埋下一段，佢就話「以致」--係，「故此，成個團隊只能透過祖母」，即係透過妳，「向TH嘅父親傳達TH嘅情況」喎。咁所以佢哋係要透過妳喎，佢哋冇辦法可以直接聯絡到F喎。

答：唔係喎，以我所知，佢哋有email聯絡㗎喎。

問：咁黃姑娘講錯咗呀，呢度？講唔正確呀？

答：咁期間佢點樣去理解成件事，我就唔清楚喇，但係係F一向都有同啲導師，同埋有email聯絡嘅，咁對於TH跟進學趣滿園嘅進度，係完全冇問題嘅。

問：妳...

答：我哋一向都跟進得好好嘅，因為我哋同梁嘉佩（譯音）老師、言語治療師，仲有職業治療師吳姑娘，我哋全部平時都有緊密聯絡嘅，所以對於TH嘅進度、學習情況，我哋一向都有溝通嘅，同埋我同啲導師接送TH嘅時候，都見到啲導師，放學嘅時候都見到啲導師，都有傾談TH嘅學習情況。

問： PGM，妳點知道答辯人係收到email㗎？

答：有時我哋喺屋企會傾下TH嘅情--耀能嘅學習情況，佢收到啲乜嘢，佢都會話聲畀我聽嘅，即係等如一樣，我有收到TH關於耀能嘅學習情況，我一樣會同F商量、傾談、跟進下佢仲有冇咩嘢其他需要，即係我哋一齊做訓練㗎嘛。”

78.I do not believe PGM’s evidence. 

79.Mr Leung in his Closing Submission submitted,

“34. F tried to explain that SAHK had his phone number and that his main contact with SAHK was with Ms Leung, one of the teachers of the Child who had his email. However, this explanation defies logic in what would Ms Wong – the administrator of SAHK – have any reason to lie about not having his number. In fact, this was put to him, and he could not provide an answer…”

80.I agree in its entirety.  There is no reason for Ms Wong to lie.

81.I also agree that when F was giving evidence on this topic, he was rather evasive.

“Mr Leung: 因為呢啲改變，根據黃姑娘嘅講法，令到老師方面好難同TH嘅家長溝通，點解會發生呢個情況？

F: 我會逐一去解釋，關於電話號碼，當我地去耀能註冊課堂，嗰陣時我哋畀咗我個電話佢哋，可能佢哋記漏咗或者唔見咗。當我喺西貢工作嘅時候，我救人時嗰啲地區可能冇電話訊號。

Mr Leung: 但係…你嘅講法係咪話你日日都喺山上救人？

F: 因為疫情嘅關係，好多人去西貢行山，我周不時都係較為繁忙，身為公務員，我工作時間越長，我放假時間就越多，我係唔會損失任何時間。

…

Mr Leung: 但係，F，你唔係每日24小時喺山上，你電話係有留言，人咪可以打電話畀你，一定係有啲時間可以用電話聯絡到你，係咪？

F: 或者你可以遲啲問我媽媽，呢個問題佢比較清楚。”

82.I find that for reasons unknown, F did not provide his telephone number to SAHK.  Even Ms Mak in her oral evidence said,

“Mr Leung: 你知唔知道點解爸爸嘅電話號碼係無畀過耀能 ?

Ms Mak: 我常常都鼓勵爸爸去聯絡耀能。

Mr Leung: 其實呢樣嘢對於TH嘅進展係會有好大嘅負面影響，同唔同意？

Ms Mak: 當黃姑娘同我講嘅情況，我有擔心爸爸係咪真正了解TH嘅情況。

Mr Leung: 其實呢樣嘢係咪睇到爸爸好唔負責任，起碼佢唔係真係好在乎TH嘅進展？

Ms Mak: 我唔係好清楚爸爸點解無聯絡耀能。

Mr Leung: 身為呢件案嘅社工，你嘅職責係去理解爸爸點解會有呢個情況發生？

SWO:  係，所以我就寫咗落去報告。”

83.As to the three classes missed, F admitted that the scheduled speech training (言語訓練)  in January and February 2020 coincided with M’s right of staying access to TH, but he explained that M’s maiden family had no car and it was the time of Covid-19, so he did not want to bother M.

84.PGM in her oral testimony said that “所有耀能嘅課堂都重要。”

85.When she was cross-examined as to why there were only 6 one-on-one training lessons (一對一的訓練)  (two in January, one in February and three in March and April), but PGM informed 黃姑娘 that TH would not attend, PGM said,

“答： TH就搭車，搭工--交通工具嘅，我哋好擔心佢又擝口罩，又摸口、摸鼻，即係我哋擔心佢搭工--交通工具嘅，咁當時如果星期六，就喺M’s屋企嘅，TH。咁我哋，以我哋所知，公公佢哋係冇車嘅，因我哋喺疫情嚴重嘅時候，係TH去中心，我哋係自己揸私家車送到佢去中心嘅。就唔使搭交通工具，咁我哋係擔心TH搭交通工具，嗰個係有一個危險性嘅，因為TH周圍摸。咁所以我哋係即係慎重考慮，一家人慎重考慮之後，都係唔--就唔去，就同黃姑娘講，我就唔上呢個堂喇，我哋就曾經要求過黃姑娘可唔可以改期嘅，但係黃姑娘就拒絕咗喇，...

問：但係其實之前...

答：就唔可以改期，同埋亦都唔會有補番堂。

問： MGM，其實疫情喺當2021年1月嗰陣時，其實疫情都已經成年嘅時間喇，年幾添，年幾嘅時間喇。

答：年幾嘅時間，一年喥喇。

問：之前都係有上過呢啲課程㗎？

答：我哋自己車佢去囉。”

86.M, on the other hand, said in her 2^nd Affirmation,

“17. I am always willing to share my role of child care with the Respondent and his family. However, I find that Respondent and his parents do not share the same sentiment. Many of the times, they are not cooperative at all in sharing the role of child care with me. They did not even allow me to bring my son to the child development services in SAHK (耀能學趣滿園)  during my child access on Saturdays since January 2021 nor to let me know about my son’s progress. My son was diagnosed developmental delay since 2017 and he needs intensive and consistent training. The Respondent’s parents have repeatedly rejected the follow-up services and treatments provided by the West Kowloon Health Centre, and now they did the same thing rejecting other services again. In October 2020, they once again cancelled the appointment of my son to attend the child psychiatric assessment at the Princess Margaret Hospital because of their unwillingness to accept any record of my son attending psychiatric assessment or treatment. They even refused to follow the advice from the social worker to bring my son to SAHK (耀能學趣滿園)  for training in January and February 2021 because they did not want me to know and participate. They never concern about my son’s learning and developmental needs. I understand that there may be times where an official diagnosis of psychiatric problems is more detrimental to a child, but in my son’s case it is definitely not as he requires professional assistance and treatment. What the Respondent and his parents seem to care about is their own pride as they do not want my son to be labeled as child with developmental delay. According to Supervisor Wong of SAHK (耀能學趣滿園), she had great difficulty in contacting with Respondent with his mobile phone. As Respondent never answered the cell phone and failed to return call. I was only allowed to take my son to attend session to treat my son’s developmental delay only after the Court made such order at the last hearing.[17]”

87.I do not believe F’s nor PGM’s evidence.  If they really thought that the trainings of SAHK were so important, they could have arranged other means of transport such as taxi or even offered a lift to take TH there. 

88.Mr Chow in his Closing Submission submitted,

“28. Counsel for M criticised that F could ask M to bring the Son to the classes and M could travel by taxi or Uber. This suggestion is simply no more than a benefit of hindsight. In this regard, one should not lose sight that when the maternal grandfather was cross-examined (before F and the paternal grandmother testified), it is his own evidence that he would bring the Son to attend the classes by public transports (namely, MTR). ”

89.With respect, I disagree.  I understand that TH takes school bus.  In my view, TH’s means of transport is not restricted to private car.  Obviously, F’s family did not want M to get involved.

90.Even Ms Mak, when answering my question in Court, gave the following answers,

“Judge: 我唔明白，你話祖母同埋爸爸安排唔到去耀能課堂係因為交通問題同埋有其他課程安排咗，但你亦都話係因為當其時係媽媽嘅探視時間，請你澄清，因為我當其時嘅命令係指定响星期六小朋友係要陪媽媽？

Ms Mak: 課堂嘅日子係喺媽媽嘅探視時間(即每隔個星期六)，主要原因係因為係喺媽媽嘅探視期間。

Mr Leung: 當日最尾嘅時候，爸爸有同媽媽講話佢哋去唔到呢啲課程，同唔同意？又或者可以咁講，爸爸嗰邊講緊大話，就係佢哋如果同咗媽媽溝通嘅話，媽媽係可以帶到TH去耀能上堂。

Ms Mak:我同意。”

91.When PGM was asked why F’s side did not authorise SAHK to release TH’s progress to M, she said in her oral testimony,

“問：「TH的外祖母，即係婆婆，同埋母親（媽媽），曾分別致電學趣滿園，了解TH嘅狀況--嘅情況--狀況...（宣讀）黃姑娘未能與外祖母及母親商討TH嘅情況。」

答：黃姑娘冇...

問：妳頭先講，就係話「如果媽媽問，我會畀㗎。」咁但係黃姑娘--好明顯睇到，媽媽有問。

答：黃姑娘冇問過我哋呢樣嘢，黃姑娘冇...

問：黃姑娘講，就係話...

答：黃姑娘冇問過我哋話...

問：...媽媽問，想知道TH個進展係點，但係爸爸冇授權佢去透露嗰啲資料。

答：黃姑娘從來冇問過我哋話「媽媽問呢啲嘢，你哋係可唔可以講畀佢聽？」佢冇問過我哋呢樣嘢。

問：即係黃姑娘又係講緊大話喇，第二個大話？

答：唔係，即係確確實實黃姑娘真係冇問過我哋話「媽媽問呢樣嘢，你哋講唔講得畀佢聽呀？」即佢冇問過我呢樣嘢，但係其實梁大狀你講咁多，其實我都同意，即我都覺得，咁如果媽媽需要知，要講畀媽媽知囉。即你將來，即係你...

問：妳成兩年幾嘅時間都冇講過畀媽媽聽，甚至乎佢想自己去了解嗰個情況，又唔畀--唔透露，即唔畀佢去問。妳而家係因為呢個審訊，妳先至係會講話妳--「哦，我知錯喇，我知道我嗰陣時我可以有改善嘅空間，我而家會進步㗎喇。」

答：我，我唔係--我冇--呢啲係你講啫，我哋係--如果黃姑娘當時係有咁問我哋，我哋都唔會話拒絕嘅。

問：但係黃姑娘嘅--妳睇番第8段，佢唔係咁樣講嘅，妳同唔同意呀？

答：但係黃姑娘佢係話「佢冇取得F一方」，但佢冇話佢問過我哋喎。

問：咁「佢冇取得F一方」就咩嘢意思呀，咁呢個？

答：係佢冇--自己...

問：佢自己話「我冇問F，佢--所以F就冇畀呀？」

答：F冇畀？

問：妳咁--妳嘅理解係咁樣呀，呢一段？

答：我只係可以話畀你聽，黃姑娘冇咁樣問過我啫。

問：妳講呢樣嘢係不--即不正確嘅，不實嘅，因為其實F已經同意咗，就係其實佢係冇畀到黃姑娘，黃姑娘有問佢，佢冇畀到。

答：黃姑娘有問佢，咁但係我而家係講黃姑娘冇問我。”

92.I do not accept PGM’s evidence.  I find that F’s side, including his parents, has tried all means to prevent M from knowing the development of TH, which is contrary to his interests.  In my view, TH requires special care.  Not only M has a right to be informed, it is also in the best interests of TH that M could provide all the necessary assistance so that TH could recover the soonest possible.

93.During the course of the proceedings, I was informed by both Counsel that since the beginning of these summer holidays, TH has been placed under the care of F and M in turn for one week each until the end of the holidays.

94.When cross-examined by Mr Leung as to why there was no arrangement with M of TH’s summer activities, F said,

“問：即係一個禮拜喺你嗰度，一個禮拜喺媽媽嗰度㗎嘛。

答：我報嗰啲班就好彈性嘅，就即係例如佢上個禮拜有兩日，咁今個禮拜我冇上㗎，跟住下個禮拜又上。

問：唔係，咁所以個重點，即係媽媽個重點，就係因為佢想幫--佢想協--即係譬如要個個禮拜上嘅，咁喺我個禮拜嗰度，我咪幫你囉，即係我要帶佢去邊個課程、去邊一度、邊個地點、咩嘢時間，其實我哋想要呢一啲資料㗎嘛。

答：但係有個--我自己有個擔憂，就係個距離問題，即係佢--媽媽住深井喇，我哋住荔枝角嘅，咁即係妳報嗰啲課程就會喺晒深井，我報嗰啲課程就喺番荔枝角，...

問：唔係，唔係...

答： ...咁TH咪會--即係咪去住--兩邊走囉，變咗。

問：正正就係呢一個原因囉，正正就係呢個原因，所以就係你哋--佢其實點解要寫呢啲email，因為佢就係覺得你完全唔同佢溝通，唔話畀佢聽究竟係時間、地點係幾時，你係--譬如你會係安排邊一啲課程，嗰啲係幾時上嘅，我會安排啲咩嘢課程，我會係幾時上嘅，咁等你哋兩個可以互相去協調究竟TH幾時會跟你上嗰啲，幾時會跟我哋上吖嘛，即呢個就係呢個email嗰個目的，同埋嗰個--即係嗰個重要性。

答：因為我哋嗰啲就好彈性嘅，真係。”

95.In my view, F as always had not been discussing TH’s daily life with M.  Otherwise, what was wrong for F to tell M what summer courses or extracurricular activities he had been arranging so that M could either make arrangement to follow F’s choice or M could have arranged something different for TH so that he could have more diversity?

96.In the medical report of Family Health Service dated 11 September 2019 (“the said medical report”), Dr Fung stated,

“TH attended the 2-year visit on 23^rd October 2017. His diet and growth were satisfactory. Developmental surveillance by the attending nurse revealed persistent parental concern of his tantrum behaviour and sub-optimal performance in language. He could point to 4 named body parts but not named pictures. He had a few single words only. In view of the sub-optimal language development and behavioural concern, he was arranged a doctor developmental assessment which was subsequently changed to 13^th December, 2017 upon parental request.

TH’s last visit at this centre was on 13^th December, 2017 when he was 2 years and 2 months old.  His grandparents brought him for developmental assessment by the attending doctor.  As reported by his grandparents, they were concerned about TH’s language development but had no worry on his vision, hearing and gross motor development….During the developmental assessment, the attending doctor found that he had fair eye contact.  He was generally restless, only remained seated when occupied with toys.  He was not co-operative in performing assessment tasks.  He made a tower of 2 blocks but refused to continue further.  He made some markings on a paper with pencil but no scribbling.  He demonstrated pretend play with kitchen set and was able to direct it to both self and others.  He could identify a few common objects and at least 3 body parts when named.  However, he did not identify miniature toys nor pictures when named.   He had limited single words.  The clinical impression was that TH might have developmental delay with features suspicious of Autistic Spectrum Disorder.  Assessment result and recommendation of referral to Child Assessment Service (CAS)  were discussed with the carers who declined the CAS referral and preferred management in the private sector.  Review developmental assessment was arranged 6 months later which was defaulted.”

97.M in her Affirmation dated 4 August 2020 said that she was concealed from the result of the development assessment[18].

98.In Court, when PGM was questioned why she did not tell M about the CAS referral, she said,

“答：我又唔明白點解佢會話佢唔知。

….

答：因為去健康院，佢一直都有帶佢去㗎喎，咁點解佢會突然間有一次佢會唔知呢？

問：因為妳冇同佢講囉。

答：咁佢可以問㗎嘛，如果就算佢真係冇同講，佢可以問番個result係點樣，佢自己有冇去跟呀？即唔係話個事情發生咗之後，佢想愛嚟攻擊我哋，就可以話「我唔知㗎，佢唔講畀我聽」，咁就得㗎嘛，我真係又好明呢度點解可以咁樣喎。點解有啲嘢佢可以話「我唔知」，咁就可以全部責任推咗畀人呢？我又唔明喎。”

99.When asked why she declined the referral, PGM said, “因為我當時唔可以同佢哋做決定，我哋唔敢自作主張同意或者唔同意”.

100.Mr Chow in his Closing Submission submitted,

“22. When the Son was suspected to have developmental delay problem, M and the Son were living at a rented flat. F stayed at the said rented flat and sometimes until midnight to take care of the Son but did not stay overnight since he was only allowed to sleep on the chair. The role of the paternal grandparents was merely to help the parties bring the Son to attend the medical check-ups. However, the ultimate decision eventually rests upon the parties instead of the paternal grandparents”

101.I disagree.  From the content of the said medical report, nothing seemed to have suggested that the paternal grandparents had consulted F and/or M before the CAS referral was declined.

102.Professor Lam in her Clinical Psychological Report said,

“2.3 當F被問及為何沒有按母嬰健康院的建議，在TH兩歲時為他登記衛生署兒童體能智力測驗中心作詳細評估時，他回應是他及M二人的共同決定，並認為TH只是受情緒影響才未有在母嬰健康院中發揮其應有的能力，亦否認護士曾懷疑TH有自閉症光譜的特徵。提及有否按社工及老師建議，安排兒子接受兒童體能智力測檢中心的評估時，他回應不太清楚，只述說有一份簡單的報告，卻未能肯定是否由衛生署發出。他亦補充擔心兒子因評估而被標籤。他認為由於兒子於十月出生，故發展比同齡孩子慢是合理的。其後，祖母提供一份由衛生署醫生於2020 年10 月23 日發出的初步評估報告，評定TH有發展遲緩，除聽覺及視覺發展正常外，認知能力、語言理解及表達能力、大小肌肉能力等都發展較慢，有焦慮徵狀，並建議家長考慮讓TH重讀K3 。F回應他因工作縶忙而未有出席評估。另外，有關TH缺席本年一月開始的言語治療，F一時表示因疫情影響；一時表示由於訓練時間正是M的探視時段。”

103.I do not believe that F had passed any of the information to M.

104.Mr Chow submitted in his Closing Submission,

“60. At the cross-examination of the paternal grandmother, Counsel for M sought to shift the focus on the lack of communications between M and the paternal grandmother. However, as the paternal grandmother said in her oral evidence, even before the separation between the parties, M did not have the telephone number of the paternal grandmother. Nor did the paternal grandmother have the telephone number of M. All along, the paternal grandmother convey the information of the Son to F and he would passed the same onto M.”

61. Indeed, such an argument that the paternal grandparents were lack of communications with M cuts both way.  As the evidence shows, the maternal grandfather convey his note of the SAHK trainings to F through M only.  There is equally no direct communication between the maternal grandparents with F.

62.  In the meantime, if M really found that the communications between the paternal grandparents and her is so important, she would have sought to obtain the contacts of the paternal grandparents long time ago (knowing all the way through that they have been assisting F to look after the Son)  instead of raising the complaints only at trial when her Counsel cross-examined the paternal grandmother.  As the Court can observe from the WhatsApp produced by M…., M had never demanded to communicate with the paternal grandparents directly, M’s complaint through Counsel now is clearly no more than an afterthought, bearing in mind that communications relating to the Son is the duty of the parents themselves.”

105.I disagree.  The root of the problem was not whether M and PGM had means of contact of each other.  In my view, the finding that TH might have developmental delay with features suspicious of Autistic Spectrum Disorder was so crucial that no natural parent should be deprived of the right to be informed.

106.I believe that the in-law relationship between M and PGM has never been good.  However, for the best interests of TH, there must be communication between the carer and the non-custodial parent with regard to major changes and important matters.

107.In HHML v. RYD HCMC 7/2011, Hon Poon J said,

“21. There is a wealth of case law on how custody care and control in the context of a divorce should be approached. For present purposes, I only need to refer to the recent decision of the Court of Appeal in PD v KWW [2010] 4 HKLRD 191, where Hartmann JA admirably explained the underlying concepts of custody and care and control in these terms :

“28. As our law has developed and now presently stands, when a marriage breaks down and the court must ensure the best interests of any child of the union, it will invariably do so by bringing into play the dual concepts of ‘custody’ - whether it be sole or joint custody - and ‘care and control’. Neither concept, however, is defined in our statute books.

29. Regrettably, empirical evidence suggests that there is a large measure of misunderstanding as to the nature and extent of the two concepts, certainly among lay persons.

30. At a practical level, a convenient way of understanding the two concepts is to compare the nature of the decision-making that is required to put them into practice.

31. The decisions to be made by a custodial parent are those of real consequence in safeguarding and promoting the child’s health, development and general welfare. They include decisions as to whether or not the child should undergo a medical operation, what religion the child should adhere to, what school the child should attend, what extracurricular activities the child should pursue, be it learning a musical instrument or being coached in a sport. A parent vested with custody has the responsibility of acting as the child’s legal representative.

32. By contrast, the decisions to be made by a parent who (at any time)  has care and control of the child are of a more mundane, day-to-day nature, decisions of only passing consequence in themselves but cumulatively of importance in moulding the character of the child. They include a host of decisions that arise out of the fact that the parent has physical control of the child and the responsibility of attending to the child’s immediate care. They include decisions as to what the child will wear that day, what the child may watch on television, when the child will settle down to homework and when the child will go to bed. They also include the authority to impose appropriate discipline.

33. We have spoken of the misunderstanding that exists as to the nature and extent of the two concepts. This is most often manifested in the misperception that, if sole custody is given to one parent, that parent thereby ‘wins’ the right to determine all matters big and small in the upbringing of that child while the parent who is not given custody ‘loses’ the right to have any say in the child’s upbringing. …

…

36. It is to be emphasised in the strongest terms that if one parent only is given custody, that parent is not thereby given an absolute and independent authority to act without further reference to the non-custodial parent. Any such potential misunderstanding was quashed in Dipper v Dipper [1980] 3 WLR 626 in which Ormrod LJ said :

‘It used to be considered that the parent having custody had the right to control their children’s education, and in the past their religion. This is a misunderstanding. Neither parent has any pre-emptive right over the other. If there is no agreement as to the education of the children, or their religious upbringing or any other matter in their lives, that disagreement has to be decided by the court.’

37. In the same case, Cumming-Bruce LJ, another experienced family judge, said :

‘ … it (is)  a fallacy which continues to raise its ugly head that, on making a custody order, the custodial parent has a right to take all the decisions about the education of the children in spite of the disagreements of the other parent. That is quite wrong. The parent is always entitled, whatever his custodial status, to know and be consulted about the future education of the children and any other major matters. If he disagrees with the course proposed by the custodial parent he has the right to come to the court in order that the difference may be determined by the court.’

38. A non-custodial parent, therefore, has the right to be consulted in respect of all matters of consequence that relate to the child’s upbringing. While the right to be consulted does not include a power of veto, it is nevertheless a substantial right. It is not merely a right to be informed, it is a right to be able to confer on the matter in issue, to give advice and to have that advice considered.

39. While, therefore, a parent who is given sole custody is given the authority, in the event of disagreement with the non-custodial parent, to make the final decision, it should only be made after due consultation and, if the final decision that is made is considered by the non-custodial parent to be inimical to the child’s best interest, the court may be called upon to determine the matter.

40. Invariably, therefore, the giving of sole custody to one parent does no more than recognise that, in the circumstances of the breakdown of the marriage, the best interests of the child are secured by giving to that parent the authority, if necessary, to make a final decision concerning matters of consequence in the upbringing of the child but only after the other parent’s views have been given full and rational consideration. In summary, an order of sole custody does not more than add a qualification to the otherwise joint endeavour of both parents in raising their child, that qualification being that the final decision will rest with one parent.

41. For this reason it is often said that there is a thin line between sole custody and joint custody.

42. …

43. Before leaving a consideration of the dual concepts of custody and care and control, it needs to be emphasised that, when a court awards care and control to one parent but rights of access to the other, as in the present case, the court is effectively awarding a form of shared care and control.  This is because, when a parent exercises rights of access, especially staying access, that parent assumes care and control of the child for the time that the child is in that parent’s physical custody.  Rights of access, it is to be remembered, are given - in the interests of the child - to ensure continued bonding between parent and child.”

108.Although PGM said in her oral testimony that if M had made the effort to ask her about TH’s problem, she would have provided the information that M needed.  I doubt that.  In any event, how could M ask if she was not even informed in the first place?

109.In order to cross-examine F, Mr Leung produced some whatsapp messages between F and M which were marked as Exhibits ‘P-1’ and ‘P-2’. In his Closing Submission, Mr Leung helpfully submitted a table showing the replies given by F when M whatsapped him requesting information of TH.

TABLE OF REQUESTS MADE BY THE MOTHER BY WHATSAPP (WITH REFERENCE TO EXHIBIT “P1”)

Date of Text Message From Mother	Category of Request	Reply from Father (if any)	Reference
16-Aug	Request for school intranet login	None	P1,p.1
17-Aug		Said would reply on a later date	P1, p.2
21-Aug		None	P1,p.2
22-Aug		None	P1,p.2
1-Sep		Replied on 7/9 stating that F will send school notices to M (P1, p.1)  but would not give intranet user name and password	P1, p.3
8-Sep		None	P1, p.4
16-Sep		F finally replied on 30/11 (right before court date P1,p.12)  providing M with Child’s intranet user name and password.	P1, p.5
22-Sep	Request for father to fill in son's vaccination form	None	P1, p.6
23-Oct		None	P1, p.9
2-Nov		F finally replied on 3/11 notifying M that vaccination has been given.	P1, p.10
3-Oct	Request for father's follow up on interview classes (M provided resources for practice after every class)	None	P1, p.8
11-Oct		None (ignored and replied other message)	P1, p.8
18-Oct		None	P1, p.9
1-Nov		None	P1, p.10
11-Sep		None	P1, p.11
30-Sep	Request for schedule of son's extra curricular activities	None	P1, p.7
19-Jan		None	P1, p.14
1-Feb		F finally replied after 4 months since initial request on 11/2 (P1, p.18)	P1, p.17
12-Feb		After follow up, F finally replied a month later on 11/3
12-Dec	Request for son's diet and bathroom routine and to get medical attention for gastrointestinal problems	None	P1, p.12
14-Dec		Replied but failed to answer questions. 16/12 (P1, p.13)	P1, P.13
12-Feb		None	P1, p.18
28-Mar		Yes, 2/4 (P1, p.22)	P1, p.20
24-Apr		None	P1, p.25
29-Mar	Request for father to follow up and practice skills learnt in speech therapy (Yiu Leng Training)  with son regularly	None	P1, p.21
17-Apr		None	P1, p.23
20-Apr		None	P1, p.23
22-Apr		None	P1, p.24
29-Apr		None	P1, p.26
4-May	Request for father to follow up and practice skills learnt in speech therapy (Yiu Leng Training)  with son regularly	None	P1, p.28
12-May		None	P1, p.28
20-May		None	P1, p.28
26-May		None	P1, p.32
27-May		None	P1, p.32

110.Mr Leung in his Closing Submission submitted,

“68….Some of the most blatant acts of refusing to communicate by the Father include the following (see: exhibit “P-1”):-

 (1)  School Username and password:  Despite requests by the Mother for the school’s username and password so that she could follow the Child’s school development in August 2020, and repeated requests thereafter, the Father did not give her the username and password until November 2020, after the Court ordered the Father to provide the username and password on 24^th November 2020.

 (2)  School Arrangements:  The Mother had at the beginning of September 2020 asked what the Child’s school arrangements would be in September, in particular on homework, course structure, syllabus, ECA’s.  However, the Father did not respond to her at all or when he did, it was much later and not all of the information that was requested.

 (3)  Vaccinations: When on 22^nd September 2020, the Mother asked the Father to bring the Child into school for vaccinations, the Father did not reply at all.  On 29^th September 2020, there was a chase up by the Mother asking again whether the vaccinations had been done.  But still no response.  The Father finally responded on 23^rd October 2020, which was already 4 days after the vaccination was given.

(4)  Summer Programmes and ECAs (see: exhibit “P.4”): Mother had to write an email to a social welfare officer handling the child abuse case Mr. Cheung because the Father was unwilling to communicate with the Mother about the current state of the summer program and ECAs.  He had never informed the Mother of what sort of classes were enrolled during summer so that the Mother could assist him.”

111.I agree and I find that F had on most occasions failed intentionally or unintentionally to reply to M on TH’s matters.  Even Ms Mak said so in her oral testimony,

“Mr Leung: 大部份嘅例子，我唔係話邊個啱或錯，但根據你嘅睇法，爸爸嗰方面係需要好大嘅進步，同唔同意？

Ms Mak: 我….我諗爸爸自然地溝通方面係有困難。

Mr Leung: 如果有一天爸爸係唔願意同媽媽溝通，唔同佢分享課堂嘅資料、或者學校嘅資料、或者日常生活嘅資料，長遠嚟講呢樣嘢係唔可行？

Ms Mak: 你指唔可行嘅意思係乜嘢？

MR Leung: 爸爸唔可以繼續做TH嘅主要照顧者，如果爸爸依然係唔可以學習到同媽媽溝通。

Ms Mak: 我份報告顯示到如果冇溝通嘅話，媽媽會需要多啲時間去適應TH嘅需要。

Mr Leung: 但係相反地，如果媽媽係主要照顧者，佢會聯絡爸爸，佢會同爸爸講學校嘅需要課堂等等，佢會嘗試不斷嘗試聯絡爸爸，同埋分享資料畀佢，可以嗎？响你份報告中，有冇可能你無考慮到關於爸爸同媽媽溝通嘅原因？

Ms Mak: 咁其實我唔知道如果角色調轉咗喺溝通方面會係點。

Mr Leung: 媽媽唔係獨一嘅照顧者，佢只係有探視嘅權力，但即使喺探視期間我哋亦都知道事實上，佢係有同爸爸溝通，所以其實如果媽媽成為TH嘅主要照顧者，其實佢同埋溝通嘅機會會比較大，同唔同意？

Ms Mak: 我同意，我相信媽媽的而且確喺溝通方面係畀爸爸主動同埋積極啲。

Mr Leung: 你會唔會同意如果媽媽成為TH嘅主要照顧者，其實呢樣嘢不是一件壞事？

Ms Mak: 父母溝通唔係我哋唯一嘅考慮，但係我同意喺呢一方面媽媽係比爸爸好。”

112.Ms Mak in her oral testimony agreed that F’s refusal to allow M to know the progress of the treatment of TH was not in his interests. She also agreed that PGM was reluctant to acknowledge TH’s problem.

113.Professor Lam also agreed that F and the Paternal Grandparents were unwilling to acknowledge TH’s problem so that in her oral testimony she said that there was room for their improvement.  Despite that, she maintains that the status quo be maintained because it is beneficial for the child not to adapt to a different environment constantly.

114.In her Clinical Psychological Report, she said,

“2.6 在共享親職方面，F坦然難以與M溝通。他歸咎M已有既定的想法，很少妥協空間。以兒子選讀小學為例，他形容M最初漠視兒子的能力，堅持申請一線小學（如喇沙小學等），經多次討論後才願意報讀其他學術要求較低的小學。他亦承認自己不願意回覆M，即使回覆也因擔心被M將其說括放於法庭上攻擊他而非當謹慎。所以，他偶然倚賴社工傳語。最後，F表示不清楚共享親職的課程，所以未有參與。

2.7 綜合有關資料，F並未接受TH的發展較同齡孩子慢，亦擔心兒子被標籤。他未有接受專業人士的建議盡早為兒子安排（及出席）評估，對其訓練亦不清楚。另外，F親歷M的病態行為而未能完全相信她能妥善照顧兒子是可以理解的。然而，在過去一年多的探視中，並沒有客觀理據顯示M在教養上有嚴重問題。F持續地逃避M，一方面只會加深彼此的芥蒂，另一方面亦間接阻礙了M向TH提供適切的支接。值得留意的是，F為了安撫TH，告知他在探視後會盡快把他接回來的說法可能誤導了兒子，使他以為爸爸並不認同他見媽媽，否則便不用「很快」地把他接回來。

3.6 綜合上述資料，M較F更願意接受及回應TH的發展問題。她因F拒絕告知兒子的生活習慣及訓練安排而威到憤怒是可以理解的。但另一方面， M並未反思自己在病發期間對F造成的傷害，也不理解他致力保護TH的心腸。

4.1 祖父母有禮貌及客套。他們表示只專注協助照顧孫兒，跟進他校內校外的訓練及補習班，避免介入其父母的婚姻問題。在憶述M病態地替TH洗澡及清潔家居時，他們顯得痛心及無奈。虐兒事件後TH由他們照顧，他們發現孫兒最初抗拒洗澡，顯得驚恐不安。但是，經過差不多兩年的照顧，TH各方面發展也有顯著進步。他們認為孫兒現在發展正當，情緒穩定，與同齡孩子沒有顯著差距。

4.3 祖父母是TH的主要照顧者，對他疼愛有加。在他們的照顧下，TH脫離過去被虐的經歷，建立正當的生活規律，在各方面發展得以進步。可是，相對F，祖父母更不接受TH有發展遲緩的問題，他們著眼孫兒的進步而漠視他與同齡兒童的差距，傾向重視培育他的學科能力多於針對其發展遲緩的基礎訓練。

…

5.3 與M相約，外祖父務實地面對TH的發展遲緩。他們減輕了M的親職壓力，亦樂意跟進她的精神狀況。然而，F及M之間的溝通問題，亦影響了他們未能掌握TH的發展情況，難以提供最適切的照料。

9. 分析，緒論及建議

9.1 綜合上述面談及觀察，F及M，以及祖父母和外祖父母都非常疼愛TH，然而他們對TH的發展進度及探視前的抗拒情緒持有不同的理解，父母二人亦基於對對方的不信任而未能有效地溝通和合作。

9.2 F及祖父母不接受TH發展遲緩，亦因擔心TH被標籤而抗拒服務。更遺憾的是F並不重視兒子在衛生署的評估安排，也不積極了解耀能協會提供的專業訓練。相反，M及外祖父則能較坦然地接受TH的發展問題，M更參與不同的親職課程，以積極的心態彌補過去虐兒的缺失並重新建立母子關係。

9.3….礙於TH的語言表達能力有限，現階段他未能解釋為何「驚媽媽」。但考慮TH對別人的情緒反應敏感，他有可能感受到父母雙方家庭關係惡劣，父親一方對探視仍存保留；或解讀照顧者的安慰說括為危險的警號，以致在探視前顯得緊張。

9.4 F以擔心M指控他為由，逃避回答M有關兒子的查詢，剝削了M向兒子提供適切照顧的機會。另外，M雖然承認虐兒行為曾對兒子造成傷害，但卻未有反思對F的影響，不理解他的憂慮。雖然如此，他們在為TH揀選小學的事件中仍能達成共識，可見大家仍存在溝通妥協的空間。

9.5 TH是有特殊學習需要的兒童，要讓他開心健康地成長，父毋雙方得先理解兒子的發展需要，放下對對方的成見及以兒子的福利為念，明白自己的言行對兒子造成的影響。若雙方仍堅持對對方的不信任而逃避溝通或互相埋怨，忽略兒子情感上需要與父母雙方建立良好關係，只會加重兒子的心理負擔，亦削弱父母有效地教養兒子的能力。綜合上述資料，我在此提出以下的建議：

9.5.1 F及祖父母作為TH的主要照顧者，務必正視孩子發展遲緩的問題及積極與相關的專業人士合作，確保他得到所需要的評估及訓練，升讀小一後亦能享用適切的支援。

9.5.2 F當讓M知道及適當地參與TH的評估及相關訓練，並主動通知學校及有關機構，向M發放有關TH的資料。而F與M也當協調彼此在學校及機構的參與方式，以免造成混亂。

9.5.3 F當讓M掌握TH的基本生活作息規律（如飲食及如厠習慣等），好讓M訂定類似的生活環境，協助TH輕鬆地投入與母親的生活。

9.5.4 F當以開放客觀的態度支持M重建其母親職能，如果他一刀切地認定對方永遠沒有足夠能力照顧TH，只會加深M對他的不滿，令溝通更困難，更容易忽咯TH的需要。

9.5.5 為了協助TH放心地投入探視，F及M，以及祖父母和外祖父母也應避免在TH面前說對方不是，或查問對方的事。在探視安排前亦不用刻意強調自己一方的好。在交接TH時，雙方亦適宜保持自然輕鬆的心情。與此同時，雙方也應積極地在TH面前，正面支持及鼓勵他與對方家長建立良好關係。

9.5.6 M當繼續珍惜父母給予的支援，積極地接受治療及建立健康的生活模式，減低病發的風險。

9.5.7 M當從F的角度理解他對其親職能力的憂慮，以彼此尊重的態度溝通合作，續積極參與切合TH發展需要的家長訓練課程，以行動證明她教養兒子的能力。

9.5.8 基於TH的特殊發展需要，有規律的生活模式、恆常的訓練及照顧者的關愛對他非當重要。所以，維持現階段穩定的探視將有助他身心健康地發展。”

115.Based on the experts’ and Ms Mak’s opinions, it seems that the only reason why care and control is recommended to F is the necessity to maintain the status quo.

116.However, in all fairness to all the experts and Ms Mak, at the time when they prepared their respective reports, they did not know that by virtue of the Up-to-date Order, M had been granted staying access every week with one alternate week having 4 consecutive days’ staying access.  For these summer holidays, TH has been staying with each parent in alternate weeks, i.e. on a week on/week off basis.

117.It is my view, therefore, that there has been no difficulty for TH to adjust.  In any event, TH had been under the care of the paternal grandparents until he was 2 years of age and then M was his primary carer until he was 4 years old.  It was when M was admitted into hospital that TH was under the care of the paternal grandparents and F again.  TH has therefore not been under the constant carer since his birth.

118.It is also my view that the sole reason why the interim care and control was granted to F was that it was suggested by Multi-Disciplinary Case Conference on Protection of Child with Suspected Abuse on 30 April 2019 that TH should continue to live with F and his paternal grandparents so as to maintain a stable living environment for the young child with special needs[19].

119.However, M is now in remission and I would borrow what Mr Leung submitted in his Closing Submission, “M has taken heed and improved her relationship with TH”[20].

120.In Professor Lam’s Report, she said,

“7.4 TH除了初段在門外有點抗拒外，整體上都是輕鬆愉快地與母親互動。他親近母親，自然地向她提出相反的意見及要求，顯示他對母親建立了一定的信任及安全感。M雖然傾向遷就TH，偶然未能發出有效的指令及彈性地回應兒子，但整體上也是以親切、正面及有耐性的態度與TH共處，TH亦樂在其中。

….

9.3 TH雖然言語上抗拒母親，但行動上卻與她親近，與母親互動時自然愉快，未有流露任何恐懼或害怕母親的情緒。”

121.According to Dr Yuen’s Report,

“16. Regarding TH's relationship with his mother, he exhibited some disorganized attachment behaviors. It was likely that in the two years when M was her son's main caregiver and before she was diagnosed and received treatment for her Obsessive-Compulsive Disorder in 2019, her child perceived that his needs were not met and she was not emotionally available or responsive when he sought her attention and affection. As a result, TH was unable to form a secure bond with her. What's more, maltreatment by his mother brought on the problem that his source of safety became a source of fear. Perceived fear became a central aspect of his relationship with his mother. His behaviors towards his mother would lack coherence. He would seek closeness, but at the same time, reject his mother's proximity and distance himself, due to fear. This was manifested during session #1 in his picking up blocks representing his mother as a protective shield but soon he wanted her to be "locked up".

17. M has been very compliant with her medical and psychological treatment ever since she was diagnosed and her symptoms are now in remission. She also has acquired basic parenting knowledge and skills from parenting classes. She has gained insights into her illness and is now eager to rebuild her relationship with her son. At this point, what is most important is focusing her efforts in learning to adopt caregiving behaviors that promote feelings of safety and security in TH.

18. During her current access to her son, it appeared that M was enthusiastic about putting her son through piano lessons and then P.1 interview preparatory training, it would serve her and her son well if more time is put on reparation efforts to amend their broken bond. In the interviews, M was most eager to teach her son something, falling short on the ability to provide well-attuned and empathic caretaking to meet emotional and security needs of her son. Understandably M was concerned about the Global Developmental Delay in TH. However, learning enhancement programs could be provided by education facilities while it is important for her to find help in identifying patterns of her own behaviors that may alarm her child and that would reduce her capacity to meet her son's needs. M and her son could benefit from a course of Child-Parent Psychotherapy with joint sessions between mother and child with the goal of promoting protective caregiving and secure attachment as well as targeting maladaptive attributes between parent and child.”

122.In her oral testimony, Dr Yuen agreed that any ‘perceived fear’ in TH was only mild.

“Mr Leung: 你會同意 “perceived fear” 係有程度？同埋小孩响邊度落入呢個範圍內？

Dr. Yuen: “Perceived fear” 比較輕微，主要係响我第一次見到TH嘅時候，我畀咗積木佢，當我見到呢類反應，係我嘅評估。

Mr Leung: 媽媽係會繼續接受醫療及心理治療，佢亦有上過基本嘅課堂，你應該都有留意到佢知道點樣照顧佢嘅孩子，“She has now gained insight into her illness” 之前有一重點係講媽媽有觀察到乜嘢傷到孩子？

Dr. Yuen: 呢個觀察現時我見到，媽媽係非常主動，同埋有嘗試去改善同埋參與其中，但佢嘅情感敏感度仍然唔夠。

Mr Leung: 你認為最重要嘅係咪比TH去感受到安全感？

Dr. Yuen: 呢點係重要，媽媽同孩子嘅相處係要公開咁讓孩子去評定同埋自然與媽媽一起嘅。

…

Mr Leung: 以上所講嘅 “disorganised detachment behaviours” 無出現過？

Dr. Yuen: 無出現過。

Mr Leung: 我唔知道你有冇機會睇過林博士係2020嘅報告？係政府嘅臨床心理學家，你有無機會睇過?

Dr. Yuen: 無，我唔知有呢份報告, 我無睇過。

Mr Leung: 根據林博士嘅報告， “he is close to his mum, there is a sense of security that exists.” 其實你同唔同意，媽媽係做到你當其時提及嘅進步。

Dr. Yuen:  似乎做得到，最緊要係有彈性。”

123.I can see that M has been working very hard to build up her relationship with TH.  M in her 2^nd Affirmation filed on 4 June 2021 said[21],

“6. …I had attended and completed eight hours certificate course [共享親職] 離異父母親職協調進修證書課程 organised by the Hong Kong Family Welfare Society in August & December of 2020. The course aimed to facilitate divorced parents to develop “child-focused” co-parenting. I also actively attended various courses organised by The Boys’ & Girls’ Clubs Association of Hong Kong to brush up my skills in child care. I am still learning (and willing to learn)  to be a better and good mother and I really hope that my son can grow up happily, healthily and normally under my care…I am planning to attend more parent-child activities so as to build up a harmonic relationship with my son….I have applied several courses organised by SAHK 耀能held on 3 July 2021 – [家長會說, 孩子會聽] and [齊來學描述] on 10^th July 2021. Also two other courses organized by 小童群益會 – [親子繪本手工樂] on 12 June 2021 and [親子廚房朱古力曲奇] on 17^th July 2021.”

124.On the contrary, F admitted in his oral testimony that he has not taken any course to improve his parenting skills.

125.Mr Chow in his Closing Submission submitted,

“35. It is also highly doubtful as to whether M truly appreciates the special needs of the Son, being a child with GDD.

36. Dr Lam recorded that [293 para.3.2 and 3.3] M mentioned to her that she would still let the Son put on diapers at night and she feels disturbed by 未能掌握的排便習慣

37. By the time of Dr Lam’s report in March 21021, M had already had numerous staying access to the Son, but M still seemed to have problems of realising the Son’s daily life habit. While there have been general (if yet over generalised)  comments that M has the ability to take care of the Son, it casts doubt on the degree of her ability in the care of the Son.

38. M refused to let the Son to use 痰罐. She tried to put the blame on F, alleging him of refusing to share the information of the Son’s habits with her. However, F had in fact advised M to both 兒童厠板 and 痰罐 to make the Son to feel comfort and give the Son time to adapt to the environment. However, M simply refuses to consider F’s suggestion and believed that the Son should have great leap of progress while she should understand that GDD problems of the Son and the perceived fear resulted from M’s past maltreatment of the Son.

39. Counsel for M tried to put the blame of the Son’s constipation problem on F [B:589]. Nonetheless, it was M’s side who admitted the Son to Tsuen Wan Adventist Hospital and F did not have control of what had been said to the doctor in care. On the other, F had indeed told M that the Son did not have any such problem when the Son was F’s home.

40. M’s inability to truly understand the Son’s needs is also reflected in M’s unrealistic expectation on the Son’s education.

41. Since the resumption of her contacts with the Son, the first thing that M asked is not the general condition of the Son but rather the education of the Son. Initially, M insisted that the Son should be enrolled in Band 1 primary school. F then tried to explain to M that the primary school that M suggested might not be suitable to the Son due to the Son’s special needs. F nevertheless still made application for the Son as requested.

42. In this regard, this Court is respectfully referred to exhibit P1 (the first set of Whatsapp messages produced by M). Exhibit P1-(2)  (left bottom corner)  clearly shows that upon Band 1 primary schools (including 聖保羅男女中學附屬小學 etc)

43. When referring to Band 1 schools, it is natural to infer that M was referring to primary schools of better academic performance.  It is perhaps true that even in Band 1 schools, there would be classes for elite students (精英班)  and classes for relatively ordinary students.  However, it will not escape from the reality that Band 1 schools are more demanding on the performance of the students.  This is also what M admitted in her oral evidence that she then had the thinking that she could gradually push the Son to stay in mainstream.”

126.Based on Mr Chow’s submission, F seems to be criticising M for TH’s constipation problem and M’s unrealistic expectation of TH’s education.

127.In relation to the constipation problem, with the greatest respect, given that F has been unwilling to respond to M’s queries about TH’s matters, M would need time to get used to TH’s daily life.  Even Professor Lam in her suggestion also recommended that F let M know more of TH’s daily living including the habit of toileting[22].

128.In any event, when Maternal Grandfather was giving evidence, he said that since the commencement of the summer holidays when F and M have had one week each of staying access, TH’s toileting problem seemed to have been resolved after 3 days when he stayed at the Maternal Grandparents’ Residence.  I accept that TH’s constipation problem would be resolved.

129.In relation to F’s criticism as to M’s unrealistic expectation of TH’s education, Mr Leung submitted in his Closing Submission[23];

76. During Father’s Counsel’s cross-examination of the Mother, he tried to impugn upon the Mother’s judgment by an example of her initial insistence of the Child applying to the so-called “elite schools” for primary 1 such as DBS, La Salle, and St. Paul’s College etc.  It seems that the Father’s criticism is essentially that the Mother does not understand what the Child’s special needs are if she thinks that the Child can attend these “elite schools”.  On the contrary, the fact that the Mother initially wanted the Child to apply to these schools but ultimately decided to accept the Father’s proposal of applying to 協和幼稚園and聖文嘉幼稚園, show that the Mother has flexibility in her judgment, that she will consider and decide what is in the best interest of the Child rather than simply what he wants. This is compared to the Father who insisted on協和幼稚園 – which was not a SAHK school compared聖文嘉幼稚園– which was because he felt that the transportation to聖文嘉幼稚園was too complicated and far.

130.I accept that.

131.In his oral testimony, when F was asked whether he had any criticism about M’s care of TH, he said,

問：好，F，你--其實你會--第一，你同意就係其實媽媽喺照顧方面，其實你冇乜大嘅挑剔，對於媽媽照顧TH嗰方面，係咪呀？

答：冇大嘅...

問：挑剔，即係冇大嘅挑剔？

答：即係如果喺公公、婆婆嘅協助下，我相信會理想嘅。

問：係，理想嘅，譬如一--其實，即係I mean...

答：要喺公公、婆婆嘅協助下囉。

…..

問：係。咁你會唔會同意其實小朋友，即係喺媽咪嗰度，其實都可以算係well settled嘅？

答：Sorry，sorry？

問：Well settled。

答：Well settled。

問：係。

答：即係安定囉，我覺得都係，都算係安定喇，都可以嘅，都可以嘅。

132.In relation to M’s communication with F about TH’s matters, F said in his oral testimony,

問：你亦都會同意，就係其實相反地，媽媽其實係會通知你關於頭先我講嗰啲事項，譬如即係學校喇、生活習慣、上耀能嗰啲課程、其他課外活動嗰啲課程喇，其實媽媽係有通知你㗎喎。

答：有嘅。

問：有匯報畀你聽嘅？

答：有嘅。

133.According to the parties’ proposal, it appears that F does not oppose M having care and control of TH from Mondays to Fridays after school, save that he wants staying access up to Monday mornings when TH attends school.

134.However, Ms Fok said that F seldom has Saturdays or Sundays off.  She was told that F works as a driver in his team, and he usually has Mondays off.

135.I have no comment as to on which days F has his holidays.  I believe that he is also a loving father.

136.However, for the reasons which I have given, I would depart from the recommendation made by Ms Mak. 

137.M said in her 2^nd Affirmation,

”41. If the Court grants me care and control of my son, I intend to continue to live with my parents at the present residence as my son loves and enjoys living there so that they can help me to take care of my son when I am not at home.  In addition, as my work hours are flexible….so that I can arrange to work in the shift between 8:30am and 4:30pm on average half a month and the remaining half will be between 10am and 6pm. This can ensure that I will be the primary care of my son after I return home at around 5:30pm or 7pm to 7:15pm after work.

42. My family and I have considered moving to a place near my son’s school.  However, we have decided that it would be better if we continue to reside in Sham Tseng and to arrange for travelling from Sheng Tseng to school either by my father driving or booking a fixed taxi or Uber to drive….

43. As to residence, the reason why I decided to stay in Sham Tseng is that this estate is nice and spacious and has club house activities.  My family and I have recently arranged to view some rented flats closer to my son’s school in Lai Chi Kok with my son but after viewing, my son said he likes to live in Shem Tseng more….”

138.I accept her arrangement.  I also accept that M continuing living with her parents is beneficial to both M and TH.  In view of Maternal Grandfather’s evidence in Court, I find that he cares very much about M and TH.  He is the one who is responsible for taking TH to lessons in SAHK and he would take detailed notes in class so that the family can work at the exercises with TH at home.  The most important is that M would send those notes to F.

139.Mr Leung in his Closing Submission submitted,

“86. When SWO was presented with the Father’s Open Proposal and the Mother’s Open Proposal and knew that the Child’s status quo would likely have to be changed in any event, she believed that the Mother’s proposal was in fact “可行”, but it would require the Child to have “係需要一啲時間去適應，但係長遠TH應該係適應到”.

140.I am of the same view.

141.For the reasons given, I would adopt the Open Proposal given by M.

142.F, however, said in his oral testimony that if he works on the middle shift (B), he could not have dinner with TH as proposed by M.  My understanding is that his working hours are as follows:-

A 7:30 – 17:06 B: 14:00 – 23:36 C: 22:30 – 08:06

143.My view is if F is working on shift B, he can discuss with the maternal grandparents so that he could have early lunch with TH before he goes to school.

Costs

144.In TPL v. WYY formerly known as WYY CACV 47/2014 and CACV 61/2014, Hon Yuen JA said,

“General practice” - no order as to costs

14.1.   One starts with the “proposition” or “general practice” (though not a “principle”: see London Borough of Sutton v Davis (Costs)  No.2 [1994] 2 FLR 569 at p570H)  that in applications to do with children, the usual order should be no order as to costs.

14.2.  This approach stems from the aspiration that in these applications the court is seeking to find an arrangement which is best for the children, so that the only “winner” is the children, and neither parent should be regarded as the “winner”/“loser”, although they had mutually exclusive proposals regarding custody and care and control.

14.3.  The rationale is that when a court considers custody and care and control of children, the proceedings are inquisitorial rather than adversarial.  In the court’s search for the best option available, it does not wish “the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate.  Nor does it wish to reduce the chance of their co-operation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them” (LB of Sutton v Davis (No.2) at pp570H -571C).

14.4.  As the English court of appeal observed in R v R (Costs: Child Case) [1997] 2 FLR 95 at p97, there is a “possibility that in effect a costs order will add insult to the injury of having lost in the debate as to what is to happen to the child in the future; it is likely to exacerbate rather than to calm down the existing tensions; and this will not be in the best interests of the child”.

14.5.  Having said that, this general practice is not a rigid rule….”

145.Mr Leung in his Closing Submission asked for costs of Dr Yuen and Dr Chow who were privately engaged because, he said, although they were experts jointly appointed by the parties, their fees for giving oral evidence are significant.  He therefore submitted,

“112. (1)  …. Under usual circumstances, their fees would be borne equally borne by the parties – as is the case in respect of their written reports. However, in addition to those reports, the Father also wanted to call for their oral evidence. That being the case, he should prima facie bear the costs of their attendance.

(2)  Second, presumably, the Father wanted their attendance to either challenge their observations, recommendations or to clarify certain matters that may not have been made clear in their respective reports. However, it came to transpire that their oral evidence did not add anything further to their written reports. The Father’s cross-examination essentially only brought out what was first set out in their respective reports without impugning on any part of it. There was therefore simply no need to call for their oral evidence which only wasted the Court’s valuable time.

(3)  Third, the Court will recall that on the day that Dr. Yuen was to give evidence in the morning (which ultimately only took 10 minutes anyways), the Father – without the Court’s approval – asked her to leave well before lunch and to come back after the lunch break. As a result of this mishap, Dr. Yuen had to come back again in the afternoon for her evidence which only took 10 minutes but with the consequence of having to incur another half-day of her fees, which are substantial.

113. For these reasons, the Mother contends that the Father should solely bear the respective attendance costs of Dr. Yuen and Dr. Chow.”

146.Mr Chow, on the other hand, submitted that the attendance of both Dr Yuen and Dr Chow should be shared equally between the parties because:-

“80….Although Dr Yuen is called by F, it turns out that Counsel for M also have questions for Dr Yuen.

81. Dr Yuen was called to clarify the issues relating to the access by M to the Son. She is also instrumental to shed light on the mother-child relationship between the Son and M.

82. Equally, the professional fees of Dr Chow for attending the trial shall be shared on an equal basis between the parties.  Dr Chow is also an expert jointly appointed by both parties (on the mental condition of M)  at the suggestion of the solicitor for M.  At the Pre-trial Review hearing, solicitor for M did not indicate that M’s side will need Dr Chow to testify.  Therefore, there shall be no reason why the fees of Dr Chow shall not be shared by the parties.”

147.For my part, even though M now has care and control, I will not say that M has won her case because it is a child’s matter.  As laid down in the guideline, the usual order should be no order as to costs and I would not depart from that principle.  However, I agree that Dr Yuen left early before lunch on the day of her attendance without leave of this Court resulting in the consequence of the parties having to incur another half day of her fees. I therefore order that F should bear costs of that half day.

148.My Order

(i)  M shall have care and control of TH and F shall have the following defined access: -

(ii)  Alternate weekend staying access from Fridays after school to Sundays 8pm and Fridays after school to Saturdays 8pm;

(iii)  Day access every Tuesday and Thursday from 6:30pm to 8:30pm if F does not need to work; and

(iv)  F shall have telephone or FaceTime video calls with TH on those days when he is not with TH for at most 20 minutes;

(v)  The parties shall equally share TH’s long holidays, i.e. CNY, Easter, Summer and Christmas;

(vi)  Public holidays other than long holidays shall be equally shared and conducted by each party in alternate years;

(vii)   F shall have access to TH on his birthday (for at least 3 hours if it falls on a weekday and 8 hours if it falls on a weekend)  and Father’s day from 11:30am to 8:30pm;

(viii)  Pick-up of TH for access shall be at the lobby of the Maternal Grandparents’ Residence by F and return of TH shall be at the lobby of the Paternal Grandparent’ Residence by M or M’s parents;

(ix)  There be a supervision order for 12 months with a progress report to be handed in 14 days before the return date of the review of the supervision order in 12 months’ time.

149.No order as to costs, save that F is to bear costs of a half day of Dr Yuen’s attendance, with Certificate of Counsel.  F’s own costs to be taxed in accordance with Legal Aid Regulations.

150.Last but not least, it remains for me to express my gratitude to both Mr Leung and Mr Chow for their helpful submissions.

Mr Eric Leung, instructed by Messrs Alvin Cheng & Rosaline Choy for the Petitioner

Mr Enzo WH Chow, instructed by Messrs Hau, Lau, Li & Yeung for the Respondent