C, Ryl (Formerly Known As S, R) v. C, S

FCMC 12228 / 2018

[2022] HKFC 8

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 12228 OF 2018

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JUDGMENT
(Access arrangements and Boarding school)

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Introduction

1.This is an application by the Petitioner father as set out below. Although slightly long, given the unusual nature of this application, I have decided nevertheless to set it out in full. The father’s amended summons is dated the 29 April 2021 and it states as follows:

1. There be joint custody of the child of the family, namely, CSHN, a boy born in 2009 ("N") and the Order dated 3 December 2018 be varied to the effect that care and control be granted to the Petitioner [father] with N moving to live with the Petitioner with immediate effect and access to the Respondent to be determined.

2. In the alternative and as the Court sees fit the care and control Order as referred to in paragraph 1 above be suspended for a period of three months pending improvement of the current matters on the basis of the Petitioner's proposals as to access as set out in paragraphs 4-9 below. If there is no improvement after three months from the date of the Order, there should be an immediate change of N's residence as set out in paragraph 1 above.

3. As a further alternative and as the Court sees fit, that N is to attend boarding school at either Harrow International School ("HIS") or Hong Kong Adventist Academy ("HKAA") as soon as he is accepted by either of these schools and a place becomes available for him. and that all necessary steps are taken to complete the required applications for this.

4. Until such time as or in addition to Orders being made under paragraphs 1. 2 and/or 3 above. During school term, the Petitioner shall have i) visiting access every Tuesday at 6:00pm -8:00pm, ii) staying access from Friday after school to Saturday at 8.30pm and from Saturday at 11.30am to Sunday at 2:30pm on an alternate weekly basis and iii) video call access every Thursday at 4:30pm - 5:00pm.

5. The Petitioner shall share the school long holidays with the Respondent equally, i.e. Christmas/New Year, Chinese New Year, Easter holiday, Mid-term break and summer holiday including staying access and the dates of which shall be agreed between the parties in advance.

6. The Petitioner shall share the public holidays/single school holidays which do not fall within the school long holidays with the Respondent on an alternate basis.

7. The Petitioner shall have N on his birthday and Father's Day if the Petitioner's birthday and Father's Day do not fall within his access time as per paragraphs 4, 5 and 6 above and the visitation time shall be from after school to 8:00pm on a weekday and from 12:30pm to 8:30pm if the birthday and Father's Day fall on a non-school day.

8. The Respondent shall have N on her birthday and Mother's Day if Respondent's birthday falls within the Petitioner's access time as per paragraphs 4, 5 and 6 above, from after school to next day if there is school next day, and from 12:30pm to 8:30pm if the birthday and Mother's Day fall on a non-school day when the Petitioner has staying access.

9. The Petitioner and the Respondent shall respectively spend time with N equally on N's birthday each year and the exact time shall be agreed between the parties.

10. If either party plans to take N on holiday and travel outside of Hong Kong, that party is to give at least 60 days' notice to the other party of the destination and give at least 14 days' notice of the details and itinerary including route, accommodation, full addresses of such travel, contact details during the trip, with an undertaking to return N to Hong Kong on the date as stated in the itinerary.

11. Any other directions as the Court sees fit.

12. Costs be provided for.

2.This is not the father’s original application. Initially the only point of contention was the father’s access to N. N, a boy, is the only child of the family, and he is now 12 years of age. He was nearly 6 years old when the parties finally separated. Following the separation, the father had access to N on Saturday afternoons only. Despite the best efforts of the court and the other professionals involved in this case, attempts to get access up and running, to include additional access during week days and regular staying access over the weekends and during the school holidays, has been spectacularly unsuccessful. If anything, during the course of the litigation the situation has deteriorated to the extent that sadly N now only sees his father rarely and the relationship between them has deteriorated to the extent that it is practically non-existent. The mother says that the current situation has also affected her relationship with N and that they have frequently had rows over the access orders made over the last few years. She says that on occasion the relationship between mother and child has become strained as a result.

3.The mother for her part, originally filed a summons on the 22 October 2020, where she made proposals for the sharing of the school holidays and the splitting of special days such as N’s birthday. Other proposals followed including very detailed Statement of Proposals for the trial initially scheduled for April 2021. These are all now largely redundant and, as will be seen, the mother now makes very limited proposals for access going forward.

4.In summary each party blames the other for the current state of affairs. The father accuses the mother of alienation and other related behaviours, whereas the mother says that the father is wholly to blame for his poor relationship with his son.

The adjournment of the April trial

5.On the 9 February 2021 the court asked, inter alia, for an updated Single Joint Expert’s report (the first having been filed on the 3 September 2019). On the 24 March 2021, the Jadis Family Development Center filed an Updated Child Psychological Evaluation. In that report it was highly recommended that the parents consider sending N to boarding school in Hong Kong. It is of note that neither parent had requested this and that the recommendation came as something of a shock to both of the parties, their respective legal teams and indeed the court. It was then, in this context, that the original trial dates were vacated and time was given to both sides to reconsider their position. The father subsequently filed his amended summons dated the 29 April 2021, as set out above. The mother chose not file any further summons.

The final proposals from each side

6.At the end of the trial the court asked the parties to carefully consider their respective positions, given the fact that the options before the court appeared (and indeed continue to appear) quite stark. In particular, the court was keen to have some clarity around the boarding school options, which, by then, included the possibility of sending N to boarding school in Canada.

7.The mother’s closing submission ran to 120 pages. Putting this as neutrally as possible, it is a somewhat unwieldy and confusing document, which on occasions is also written in highly emotive terms. It is also extremely difficult to work out from this exactly what the mother’s current position is. Nowhere is there a summary setting out in point form what she proposes going forward, nor is an updated stand-alone Statement of Proposals attached.

Mother’s updated proposals

8.Doing the best that I can therefore, it seems that the mother is now suggesting that:

i)  “The possibility of sending N to Canadian boarding school may be entertained”. (Paragraph 31 (b) of the Mother’s Closing submission);

ii)  This should not be considered until 2023, when N enters 9^th grade (see paragraph 32). At the same time the submission seemingly argues against the boarding school option, see paragraphs 225 – 244 and in particular paragraph 241 which states as follows:

241. The M's position is clear - no gambles at all should be taken on something as important as N's psychological health or education. N is safe and stable in his current educational environment. The side-effect of potentially being able to foster a better father-son relationship in boarding school (if any) should not come at the expense of potentially further damaging N's overall psychological health by ripping him away from the stability and continuity of one of his most important anchors in his life. The M's position and worries have been clearly addressed in the 3^rd Affidavit of the M [P5/71/999/§73].

Reference may also be made to paragraphs 261 – 280, where again the boarding school option is seemingly argued against, in its entirety. From paragraph 298 the possibility of boarding school in Canada is considered, but again this is discussed in largely negative terms. At paragraph 306 the mother finally concedes as follows:

306. Therefore, given all the circumstances, the M agrees that boarding school is a viable option, but that the only possible sensible workable option is to consider a boarding school in Canada in 2023. M has set out her reasons in her evidence both written and oral.

iii)  It can be inferred from the mother’s submission that she also wishes care and control to continue to be vested in her and that she does not wish to vary the order for joint custody.

iv)  In so far as access is concerned, finally at page 115 of her closing, (at paragraph 331), she states as follows:

331. In the event that the Court is minded not to reverse care & control and/or send N to boarding school, it is further submitted that access arrangements should remain the same in accordance with the recommendations made by Mr. Tang in his 2nd SWO Report, save that in order to provide continuity, and given that this is unfortunately a high conflict case, that things should be kept simple, so there should be no alternating the Saturday and Sunday access, rather the weekend access should occur on Saturday each week.

As indicated above, since separation, N has only had access to his father on Saturday afternoons. Thus, the mother seemingly wishes to revert to the original status quo and no longer wishes to be bound by her original proposals, or indeed by her original summons or by Mr Tang’s proposals as set out in his second report.

The mother makes no other proposals with respect to access, in particular there is no reference to the possibility of a therapeutic intervention of any kind or indeed of additional support for N (N is currently refusing to attend counselling with his previous therapist), she also makes no proposals for any form of further therapeutic support for herself. This was also a point of contention during the trial. At Paragraph 31 (a) she states that it is common ground that “It is in the best interests of N to have a good relationship with both parents”. However, she makes no suggestions at all regarding how this might be achieved, save for the suggestion of Child Inclusive Mediation (see v) below).

v)  The mother proposes Child Inclusive Mediation. It is not entirely clear for what purpose, given that this proposal comes at the end of a 10-day trial, where the court is charged with making orders that will bind the parties, certainly in the immediate to short and medium term. Had the mother wished to suggest this, then with respect this should have been put forward a lot earlier. From the submission it also seems that this suggestion may have been confused with a therapeutic intervention, as it is suggested by the mother that the parties may wish to discuss the difficulties with the father-son relationship and the boarding school option in this context.

vi)  It is also proposed that, “if” parenting Co-ordination is to continue, then the father should be responsible for these costs in their entirety.

The father’s proposals

9.The father originally filed detailed proposals prior to the trial, in which he attempts to provide some context for his amended summons. For example, he acknowledges that “flipping” care and control may be traumatic for N, but he states that he believes that in the longer term this will be less damaging than allowing the status quo to continue. He also asks the court to direct that the mother receive “the psychological help that she needs” and that he and N have specialist counselling – i.e., reunification therapy. He confirms that he now wishes to send N to boarding school in Hong Kong. He seeks access, more or less as previously ordered. He also wishes Ms Maureen Mueller to continue in her role as a Parental Co Ordinator and for those costs to be shared equally.

10.In his closing submission he supplements these proposals as follows:

161. The Father therefore makes the following proposals:

(1) N and the Father to have reunification therapy with a therapist chosen by the Father as soon as practicably possible. This will either be with Dr. Amanda Oswalt-Vischer or in a programme with the London Separation Clinic in conjunction with a local therapist. The Father is waiting to hear from the London Separation Clinic on this.

The cost of the therapy should be shared by both parents to encourage the participation and involvement of the Mother.

N, the Father and the Mother should participate as directed by the therapist and comply with, participate and follow any treatment plan designed by the therapist.

(2) N should also have the opportunity to continue his therapy with Dr. Poon or another suitable therapist for his anxiety and depression.

(3) The parties are to jointly apply with the assistance of the PC for N to be admitted to the following schools as a boarder starting in September 2022:

(1) Harrow International School Hong Kong ("HIS");

(2) St. Andrew's College Toronto ("SAC");

(3) St. George's College, Vancouver ("SGS");

(4) Upper Canada College, Toronto ("DeC")

(4) Applications are to be made as soon as the said schools start to accept applications for admission for the 2022 school year and the parties are to complete all necessary formalities for making the applications without any delay.

(5) Depending on the responses from the schools, should N be accepted by more than one school then the parties are to agree on which one to accept. If they are unable to reach a consensus themselves, they should enlist the help of the PC and finally the Court as a last resort will decide.

(6) Should N attend HIS the Father is to have staying access on alternate weekends.

(7) Should N attend boarding school at SAC, SGS or UCC the parties are to share holidays/exeats equally as set out in the Father's Open Proposals.

(8) In the interim, from now to January 2022 the Father is to have access as set out in his Open Proposals and the Mother is to facilitate the same. Where access is at the Father's home the Mother or her helper Ma are to bring N to the Father's home.

(9) Should N fail to be accepted into any of the abovementioned boarding schools then Care and Control of N is to be granted to the Father and N is to move to live with the Father in January 2022 (6 months). Such a suspension of the change of Care and Control will allow time for progress in repairing the father/son relationship through reunification therapy and for the Mother to receive the help that she needs.

(10) The Mother should have the therapy recommended by Dr. Craigen as supported by Dr. Zaidi.

(11) The parties continue to employ Maureen Mueller as PC

(12) The PC is to assist the parties in preparing a joint script for N and he is to be informed of the Court's Order by both of the parties together on this basis.

(13) The matter be fixed for a short hearing before January 2022.

(14) There be a short updating report from the PC prior to that hearing to inform the Court on the progress of case.

N. Conclusion

162. The SJE's reports and Dr. Zaidi's report both show that the Mother has unresolved issues that are directly resulting in the impairment of the relationship between N and the Father. This and the fact that N is having to support the Mother's emotional needs is plainly terrible and must be changed.

163. The facts further show that N's relationship with his Father has deteriorated, getting progressively worse through these proceedings, not better. This is despite Court orders, despite therapy, and despite the Father having done everything, including improving on his own awareness and parenting capacity, trying his best to make access "fun" with N [P3/627/§128], and significantly improving on his own emotional and mental state [P2/467].

164. Unfortunately, the Mother has not followed Court Orders, she has not received the therapy that has been recommended for her and she does not accept what the experts say and as a result she will continue to block father/son relationship. Care and control should now be awarded to the Father, to be suspended for six months. Unless there is a drastic change in the interim this should be effected in January 2022 and N should move to live with his Father.

The issues

11.It seems to me then, that the court is being asked to determine the following issues:

a)  On a balance of probabilities can it be said that the mother has “alienated” N from his father?

b)  Should there be a reversal of the current order for care and control, in that care and control should be vested in the father?

c)  Can or should that order be suspended?

d)  In the alternative, should there be a therapeutic response to this case and if so what is it and how should it be managed?

e)  Should consideration be given for N to attend boarding school and if so, should that be in Hong Kong or in Canada and should he attend as soon as possible or from August/September 2023, at the earliest?

f)  What orders, if any should be made for access?

h)  Should any other orders/directions be made?

i)  What order should be made for costs?

Background to the marriage

12.Both parties set out the background to their marriage in their respective affidavits, but I have turned instead to the first Child Custody Evaluation Report where a more neutral statement of fact can be found as follows:

Family Background

Mr. C [the father] was born and raised in Indonesia. Both of his parents are seventy years old and retired. They divorced when Mr. C was an adult; his mother continues to reside in Indonesia whilst his father moved to Macau. Mr. C has one sibling, a younger sister who is married with two daughters and lives in Indonesia.

Mr. C finished his secondary education in Indonesia in 1993 and then completed a bachelor's degree and a master's degree in Industrial Engineering at the University of Wisconsin in the USA. After leaving university in 1998 he worked as a senior consultant in a technology company before relocating to Canada in 2001, where he undertook senior managerial posts in various companies. In 2007 he relocated to Hong Kong, taking up a senior director role at SM, and in 2010 he completed a part-time course in Master of Business Administration at Hong Kong University of Science and Technology. In 2014 he became a Vice President of Operations at ABC, where he continues to work. His employment entails travel to Shenzhen and Macau during the week, and to the USA for approximately one week each quarter.

Ms. C [the mother] was born and raised in Hong Kong. Her father, a retired physician, is eighty-eight years old whilst her mother is eighty-one and a homemaker. They remain married and after a period during which they resided in Canada they returned to live in Hong Kong. Ms. C has one sibling, a brother who is fifty years old and a retired restaurant owner. Her brother is married with no children.

Ms. C was educated through middle school in Hong Kong and then completed high school in the USA. She gained a scholarship to P University and in 1996 obtained a bachelor's degree in Industrial Engineering. She then worked as an engineer and software consultant in the USA before in 2000 emigrating to Canada, where she attained a master's degree in 2003. Following this she was employed as a supply chain manager. After a job offer in Shanghai, Ms. C moved to China for eight months and worked as a management consultant before she returned to Canada. She undertook contract work and formed her own company in Toronto, and then moved with Mr. C to Vancouver. In 2007, she returned to Hong Kong as she wanted to be close to her ailing father, and accepted a senior associate position at DE. Following her return to work after maternity leave she resigned from this job to stay at home for 18 months to be a fulltime mother. In 2011 she returned to work, as a director in the Wealth Management division at F (Hong Kong). She reports that her role at F affords her much flexibility and the option to work from home for part of the week.

Mr. C and Ms. C met at a company event in the USA in 1999. After dating for a period and an abortion in 2000 they separated for six months before resuming their relationship. The couple married in May 2003 in Canada and in September 2009 their son, ("N") was born.

Whilst the couple lived in Canada marital difficulties first arose and they consulted a marriage counselor there. Both Mr. C and Ms. C report there was improvement in their relationship following their relocation to Hong Kong. Despite this, following the birth of N their difficulties escalated and in March 2014 the possibility of a divorce was raised. This discussion resulted in a physical dispute, during which Ms. C called the police. The couple then entered into a short period of mediation and moved to Tsing Yi to start afresh. However, their conflicts continued and in May 2015 Mr. C asked Ms. C to leave the family home. They agreed that Ms. C would continue to be the primary caregiver to N. Following the parental separation Mr. C had access to N each Saturday. In 2018, the couple entered into further mediation; agreement was not reached over child access arrangements and in September 2018 Mr. C petitioned for divorce.

13.Since then, the mother has changed jobs and she is now employed in another senior position within the banking field. The father continues to work for the same company, as stated above, which is based in Macau. He says that he is not currently required to travel because of the ongoing travel restrictions arising out of Covid. It is not known how or if this will change longer term.

Allegations of domestic violence

14.By both parties account the marriage was a difficult one, although each side provides a different explanation for this. It is the mother’s case that, on occasions, these difficulties escalated and that there were incidences of domestic violence, although the mother was clear to the Jadis Blurton team, that she was not a “victim” and that she “gave as good as she got”.

15.However, there is one incident in particular that has become central to the current dispute. On the 2 March 2014, when N would have been about 4 ½ years old, there was a violent incident between the parents which led to the Police being called. N was present and arguably witnessed this incident. He also appears to recall it. He remembers “Daddy hitting Mummy” and he believes that the father has subsequently lied about what happened. The mother says that this is not of her doing. In her 1^st affidavit dated the 12 March 2021 she explains it thus:

66. It is not easy for any child to have been through this sort of event, but worse for N is that there is even a confusion of what he sees vs. what he had heard because his father was shouting "Don't hit me" whilst he was physically assaulting his mother. In the reports, Ro [the father] has expressed that he had apologized and would do so again to me, if needed. However, the fact is that he has not only made no apology for this but he has on multiple occasions denied that it ever happened and he has denied it in front of N, and furthermore he has not apologized to N. This I believe forms a very deep seated problem for N. I also think that N distrusts his father because of the way in which Ro has lied about this incident and unfortunately the lies / fibs he tells on other occasions does not help matters.

…

69. The fact is that N remembers witnessing his father's physical abuse of me. In a discussion between Ro and N one day after these proceedings started when they were having dinner in Happy Valley, N expressed that he disliked Ro because he did not like that he hit me. N was there in the room when it happened; it was the most traumatizing experience for N so far. Instead of acknowledging that it was wrong, Ro first denied it, then later asked N what he was doing at that time and claimed that N was happy watching it and jumping on the side telling him how much N loves him. For weeks after that, N was very sad and even though I have reassured him many times that it was not true, he had doubts in his mind and often apologized to me about not being able to help me out, which should never have been the expectation on a 4 1/2 year old. No words could describe the pain I felt when I heard what N told me Ro had said to him and the impact it had on N. I am very concerned that Ro is unable to recognize N's pain and feelings. Perhaps it was N's nervous giggle that confused R, but to this date, I could not understand why Ro had to not only denied the incident in front of N, but why he had said these hurtful words to confuse N.

70. It is my view that whilst there was a routine to his access with his father and whilst things were relatively calm, N has somehow buried this incident. But that when the proceedings started and his routine access was disrupted and he was constantly being examined and asked questions he became anxious that it has come to a head. I have no other explanation for it - all I know is that I have not told him I reminded him about this incident. I have shielded him from it.

71. I do not think it is fair to force N to go to his father's home if he does not feel safe. I believe that this incident and the manner in which Ro has dealt with it is key. I do not believe that forcing N in this manner will help him "heal" faster. There seems to be a "he will get over it" and a "if the Mother tells him its safe and he goes and he finds out its safe then he'll be OK" approach. It appears to me - although I appreciate I am only his mother and not a mental health professional - that the pressure placed on N to go to his father's home is not conducive with resolving this issue as it seems to add more stress on N. It seems to me that all the emphasis is being put on accommodating Ro who is seen as a father desperately wanting to spend time with his son but no real regard is taken of N's needs who wishes to have space and to take things slowly. However, this cannot simply be concluded as me not willing to allow Ro in N's life. Three times a week, I remind N that "tomorrow there is visitation", and the stress that experienced by the two of us - by N initially and by me after seeing how N reacts - appears to me to be considered as secondary and does not feature as something that needs to be addressed but rather the focus is always on the father, who blames me and accuses me of alienation.

16.The father for his part maintains that he has apologized to N. As stated above, this is disputed. During the trial it was also suggested to the mother that N was too young to have remembered an incident of this type and that this was an example of the mother’s alienating type behaviours, i.e. that N only remembers this incident because the mother has reminded him of it. This is of course denied by the mother.

17.Having heard both parties in the witness box, it seems to me that on a balance of probabilities, the possibility of N remembering this incident and forming his own view with respect to it, cannot be discounted. This will be discussed again when turning to the experts’ reports.

Background to the litigation

18.On the 24 September 2018 the father issued a divorce petition based on 2 years’ separation. N would have been about 9 years old at the time. On the 30 November 2018 the decree nisi was pronounced. The parties entered into mediation and were able to come to terms on all matters save for longer term access. The mediated agreement is dated the 14 November 2018 and the subsequent court orders are both dated the 3 December 2018. The decree absolute was pronounced on the 23 June 2020.

19.Attempts were made to resolve the outstanding issue of access through the Children’s Dispute Resolution process. A number of orders have been made, with a view to increasing access gradually and at N’s pace. This has seemingly not worked.

Access arrangement following the separation

20.Following the incident on the 2 March 2014, the parties attempted to work on their marriage and they remained together until March 2015, when the father finally moved out. N was not told that the parties had separated. He would have been nearly 6 years old at the time. A routine was then established whereby N would spend time with his father on Saturday afternoons. The father would take N to 2 or 3 ECA’s that the mother had arranged for N during this period, originally an Art class from 3:30 – 5:00 pm and a violin class from 5:30 – 6:00 pm. Access was generally from 1:00 pm – 8:30 pm. It is the father’s case that he continually asked for more time with N, including overnight staying access, but that the mother would not agree to this. It is the mother’s case that the father was often not available in any event and that he travelled frequently for work during this period. In addition, the mother would invite the father to join her and N on overseas trips. These trips came to an end in 2018, around about the same time that the father issued the divorce proceedings.

21.In summary then, since the separation in 2015, N generally only saw his father on Saturday afternoons and on some overseas trips when his mother was in attendance also. He never stayed overnight with his father and there were no special arrangements for school holidays or public holidays or even for N’s birthday, which has also become a point of contention between the parties.

N’s psychological, social and emotional development

22.Turning to N himself, it seems that initially, there was some concern about his development and he had an assessment with a psychiatrist, Dr Fanny Lam, initially prior to separation in May 2012 and again for a review assessment in June 2018. There was some dispute over the second assessment as the father complained that he knew nothing about it. In any event, at that stage N was diagnosed with ADHD (Attention-Deficit/Hyperactivity disorder - inattentive type) and emotional insecurity and Dr Lam recommended an Individualized Education Plan. Since then, it has been further suggested that N’s symptoms may not be indicative of ADHD, but rather of extreme anxiety instead. In either event this is a matter of very real concern. It is of note that there has been no definitive and updated report in this respect.

23.As indicated above, it is also of note that N has never been on a “sleep over” with anyone. I queried this during the trial and was told that N had never stayed overnight with a friend, or attended a sleep over at a birthday party, or even stayed over with another family member. Not surprisingly perhaps he seemingly struggled to attend school camp. I was told by the mother that this had “never come up”. To that end it is of note that N attends an international school where one might have expected sleep overs to be a regular part of a younger child’s social calendar.

N’s letter to the court

24.On the 21 March 2019 N wrote to the court. This was not requested. The letter stated as follows:

Dear Judge,

I am writing to you because I want to tell you about how I really feel. I don’t want to spend any more time with my father, R, given the fact that there were some things he said and did that I found insulting, because of some other things he did before feel unsafe around him.

For instance, he hit my mother when I was younger, and when I recently confronted him of this event, he denied doing, I confronted him yet again, but this time he claimed that I was happily jumping and saying how much I love him I knew that was not what I did but I still felt sad.

Last summer, I was doing homework at a cafe, then he said he was going to buy something and left me alone in the café for 20 whole minutes, he also said that if I ever wanted to go live with him, he could easily replaced my mother with a tutor.

I would appreciate it if I could have a chat with you in person.

Thank you for your attention.

Best regards,

N,

21^st March, 2019

25.The mother denied any direct involvement with the writing of this letter. For the record this is not accepted. She further stated, in the witness box, that she had been advised by her then counsel to facilitate the writing of this letter. Again, and for the avoidance of doubt, this is not accepted. On this point the mother is simply not credible. To be frank, I simply do not believe what the mother has said in this respect.

Attempts to get access up and running

26.Various attempts have been made to get access up and running, including inter alia, 1) a detailed court order dated the 17 September 2019, following the first CDR hearing, 2) Family Therapy with Dr Wai Yung Lee (which was terminated by Dr Lee after 9 sessions), 3) a subsequent court order dated the 27 November 2020 and a court order dated the 28 April 2021 following the adjourned trial. As I have said, all of these attempts have been unsuccessful. In particular, it is of note, that N ran away on the 8 May 2021 and on the 17 July 2021, after being dropped off at his fathers. As I understand it, and as things presently stand, it seems therefore that N is not currently having any form of meaningful access with his father. There is currently a stand off between father and child and it seems that to all intents and purposes N is “voting with his feet”.

The law in Hong Kong

27.Turning next to the law. The general principles governing applications relating to children’s issues are well known and not in dispute. These can be found in s 3 of the Guardianship of Minors Ordinance, Cap 13, where it is stated 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 views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

(B) any material information including any report of the Director of Social Welfare available to the court at the hearing;

List of factors

28.In addition, reference may also be made to the list of factors found in the Children’s Proceedings (Parental Responsibility) Bill. At this stage it is not known if this list will ever pass into law. However, the list continues to be a useful guide for both judges as practitioners when considering matters concerning children and their care. The checklist states that the following matters may 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.”

29.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. To that end it should be noted that I have considered these sections generally when coming to my decision below, but that I have decided not to discuss each of these sections in turn.

Recent case law on “alienation”

30.Ms Rattigan, for the father, also produced a relatively recent Court of Appeal decision from England, namely Re: S (Parental Alienation: Cult) [2020] EWCA Civ 568, which was very helpful in that it discussed the concept of alienation and how the court might best approach allegations of this nature. It states inter alia as follows:

The law concerning parental alienation

7. At the outset, it must be acknowledged that, whether a family is united or divided, it is not uncommon for there to be difficulties in a parent-child relationship that cannot fairly be laid at the door of the other parent. Children have their own feelings and needs and where their parents are polarised they are bound to feel the effects. Situations of this kind, where the concerned parent is being no more than properly supportive, must obviously be distinguished from those where an emotionally abusive process is taking place. For that reason, that value of early fact-finding has repeatedly been emphasised.

8. As to alienation, we do not intend to add to the debate about labels. We agree with Sir Andrew McFarlane (see [2018] Fam Law 988) that where behaviour is abusive, protective action must be considered whether or not the behaviour arises from a syndrome or diagnosed condition. It is nevertheless necessary to identify in broad terms what we are speaking about. For working purposes, the CAFCASS definition of alienation is sufficient:

“When a child’s resistance/hostility towards one parent is not justified and is the result of psychological manipulation by the other parent.”

To that may be added that the manipulation of the child by the other parent need not be malicious or even deliberate. It is the process that matters, not the motive.

9. Where a child’s relationship with one parent is not working for no apparent good reason, signs of alienation may be found on the part of the other parent. These may include portraying the other parent in an unduly negative light to the child, suggesting that the other parent does not love the child, providing unnecessary reassurance to the child about time with the other parent, contacting the child excessively when with the other parent, and making unfounded allegations or insinuations, particularly of sexual abuse.

10. Where a process of alienation is found to exist, there is a spectrum of severity and the remedy will depend upon an assessment of all aspects of the child’s welfare, and not merely those that concern the relationship that may be under threat. The court’s first inclination will be to reason with parents and seek to persuade them to take the right course for their child’s sake, and it will only make orders when it is better than not to do so. Once orders are required the court's powers include those provided by sections 11A to 11O of the Children Act 1989, and extend to consideration of a more fundamental revision of the arrangements for the child. We agree that whilst a change in the child’s main home is a highly significant alteration in that child’s circumstances, such a change is not regarded as "a last resort": Re L (A Child) [2019] EWHC 867 (Fam) at [53] to [59] per Sir Andrew McFarlane P. The judge must consider all the circumstances and choose the best welfare solution.

31.Thus, the key often, in cases of this nature, is whether or not there is, on the face of it, any good reason why a child has rejected a parent? Although this is a rather simplistic approach, often the starting point is to establish whether or not there might be a good reason for the child behaving as he has. If there is no good reason, then that may provide a good starting point for a consideration of whether alienation or any of the other related issues, exist. If there are some identifiable reasons for the child behaving as he has, then this may undermine any such arguments.

Discussion

32.I must now turn to consider the issues, the law and each party’s evidence as set out in their affidavits and as given by them orally during the hearing. I have also heard from the Social Welfare Officer, Mr Tang Kit-leung, Oliver who prepared three reports the first dated the 15 March 2019, the second dated the 26 January 2021 and the third updated report of the 9 June 2021. In addition, the court heard from the Single Joint Expert, namely the Jadis Blurton Family Development Center, who prepared the initial Child Custody Evaluation report dated the 3 September 2019, followed by the Updated Child Psychological Evaluation report dated the 24 March 2021. Dr Craigen, appeared in court on behalf of the Single Joint expert. Further, Psychological Assessment Reports were prepared on each of the parties, by Dr Quratulain Zaidi dated the 3 and 5 February 2021 respectively. In addition, two brief reports were prepared and referred to in court, by the Parenting Co ordinator, Ms Maureen Mueller dated the 31 March 2021 and the 10 June 2021. Dr Zaidi also appeared in court. As one might expect, Ms Mueller did not.

The Recommendations made in the reports

33.It is generally my practice, when writing judgments on children, to consider the Social Welfare reports first. However, given the pivotal nature of the Updated Child Psychological Evaluation report of the 24 March 2021, I have decided to turn to this report first.

The Updated Child Psychological Evaluation Report dated the 24 March 2021

34.This report is comprehensive, wide ranging and extremely useful in identifying the current issues and in trying to assist the court by proposing practical options for taking this case forward. In the Summary of Findings & Clinical Implications, Dr Craigen identifies and summarizes the current situation inter alia as follows:

SUMMARY OF FINDINGS & CLINICAL IMPLICATIONS

55. Exposure to domestic violence is distressing and can have a long lasting negative impact on the social and emotional development and general wellbeing of children. Given that there were allegations of domestic violence made against Mr. C (and witnessed by N), N appears to be developing well socially and behaviorally at school and within the wider community. His teachers report that he is making good academic progress and developing and utilizing prosocial behavioral repertoires when interacting with his classmates and teachers.

56. There are many children who witness domestic violence who do not experience adverse emotional effects (Kolbo, 1996). However, N’s close family system is a source of continued distress. Most children are resilient and with the help of his parents and therapists N does have the capacity to heal, yet the current situation does not appear to be supportive of N’s post-traumatic growth.

57. Exposure to marital/parental conflict is a well-documented risk factor and a serious barrier to the healthy emotional development and psychological adjustment of children. Children of divorce have better overall adjustment when they experience healthy relationships with both parents (Hetherington & Kelly, 2002). Findings suggest that while N and Ms. C have a warm and close bond, he continues to reject his father’s attempts to spend time with him. The relationship between Mr. C and N remains strained. The prolonged conflict seems to now be negatively affecting N’s relationship with his mother.

58. Triangulation “is a system process in which a child becomes involved in parents’ conflictual interactions by taking sides, distracting parents, or carrying messages in order to avoid or minimize conflicts between parents” (Buehler & Welsch, 2009). Despite admitting that he is not fearful of physical violence when he is in his father’s care, it appears that via the triangulation process N has taken his mother’s side against his father. Although it is likely that Ms. C is responding to legitimate past grievances, N’s attitude towards his father is likely to remain unchanged until Ms. C herself can begin to process her own negative emotions and can actively demonstrate to N that even though she may not be able to forgive Mr. C for his past indiscretions, she is willing to try to move on and put the past behind them in order to effectively co-parent. Modelling this emotionally intelligent behavior will give N the platform towards individuation and growth rather than unconsciously continuing to be the protector and supporter of his mother's emotional needs.

59. Parental gatekeeping “refers to parents’ attitudes and actions that serve to affect the quality of the other parent’s relationship and involvement with the child” (Austin et al, 2013). Following separation and divorce both parents are vulnerable to engaging in unsupportive gatekeeping behaviors and attitudes. The hands-on caregiver is most often the parent with concerns post-separation regarding the other parent’s competence. Despite his father’s desire to remain involved and willingness for self-improvement, N continues to reject his father as a competent source of guidance, love and care. N’s failure to comply with access orders is most likely a by-product of Ms. C’s restrictive gatekeeping. Research shows that “mothers’ attitudes about fathers’ involvement and coparenting, and her behaviors in supporting fathers’ involvement, are significantly correlated with father involvement in terms of both limiting and promoting it” (pg. 491).

60. “The well-known statistical differences between children's adjustment in intact families versus all other family structures is parsimoniously described by differences in levels of resource availability or social capital” (Austin et al, 2013). N’s damaged relationship with his father combined with his father’s limited involvement in his life and restricted ability to positively influence, guide, and discipline N severely disrupts the social capital and flow of resources (e.g., a positive role model, trust, values, respect for authority figures, commitment, emotional growth, and instruction) available to N.

61. Yet Mr. C’s response to Ms. Ch’s restrictive gatekeeping in and of itself further undermines N’s sense of safety and security. In a downward spiral, Mr. C’s alleged misconduct (e.g., continuing to record conversations with N during access, keeping a detailed record of times and length of access visits, requesting to increase access despite there being no improvements in the child-father relationship, etc.) appears to promote Mr. C’s own self-interest and desire to “be a father to N” but he is unaware that his actions create negative social capital (i.e., distress, distrust, avoidance behaviors, etc.) and therefore Ms. Ch finds adequate reason and justification to continue to restrictively gatekeep.

35.Despite attempts made by counsel for the wife to undermine what is written here, I largely accept this analysis of the current state of affairs. In other words, I accept that given the ongoing nature of these proceedings and N’s damaged relationships, in particular with his father, has led to an element of ongoing distress for N. He has not had an opportunity to “heal”. His observation of the incident in March 2014 most probably forms part of this distress, but it is not the only reason for it. I further accept that N has become directly involved in the conflict and that he has clearly sided with his mother against his father and that this situation has not been helped by the fact that the father has, in the more recent past, tried to negotiate the access arrangements with N directly, seemingly at the original suggestion of Dr Lee. I further accept that the situation is unlikely to change unless the mother’s own approach towards the father changes. Similarly, the father also needs to be aware of the effect that his own behaviours have had on the situation. To that end it is of note that although clearly bright, both parties exhibit a clear lack of insight into the current impasse, with each taking more and more extreme positions as the case has developed.

36.In her Conclusion and Recommendations, Dr Craigen adds as follows:

62. The long, drawn out nature of Mr. C [the father’s] and Ms. Ch’s [the mother’s] continuing conflict surrounding Mr. C’s access with N suggests an enduring and ingrained pattern of behavioral interactions that are likely to persist. Presently, N’s parents remain unable to coparent cooperatively nor can they develop or maintain a functional parenting alliance. The family has been unable to address this problem via therapy nor by making modifications to the parenting schedule. In some cases, the presence of restrictive gatekeeping practices and the inability to resolve issues around access have led to trial court’s changing primary custody. However, given that Ms. Ch is N’s primary source of emotional security, it seems cruel, unwise, and possibly even complex trauma-inducing to switch Care and Control to Mr.C at this time.

63. In Ms. Ch’s mind, her restrictive gatekeeping may be justified given the allegations made against Mr. C in the past and his poor relationship with N, yet there is no evidence to support Ms. Ch’s evaluation of Mr. C as being an incompetent parent nor N’s evaluation of Mr. C as being threatening and/or abusive. Therefore, it seems unjust to continue to deny Mr. C his right to be involved and actively parent N as spending time with his father does not appear to seriously endanger N’s physical, mental, or emotional health.

64. Given N’s reluctance to proactively engage in therapy and with a desire to improve his overall psychological health, it is highly recommended that Ms. Ch and Mr. C consider boarding school in Hong Kong as a viable option to alleviate the stress their conflict is inflicting upon N. Boarding schools have a responsibility for teaching academic and life skills as well as buffering the negative effects of family, community, and the student’s personality, attitude and behavior in order to steer students towards positive academic and life outcomes.

65. In light of his family situation and his difficulties with attentional control, the data suggest that N could potentially benefit from a live-in educational opportunity that provides more structure and routine, allows for increased autonomy and encourages greater self-reliance.

66. Should the parents be unable to agree and therefore the Court is left to decide in N’s best interest and thus order him to go to boarding school in Hong Kong, it may be of benefit to do so earlier rather than later. By doing so, he will then have adequate time to transition and become accustomed to a new environment well before the pressure of his studies increases. He will also be shielded from his parents' conflict and protected from the distress inherent in his family system.

RECOMMENDATIONS

67. N should be mandated by the Court to attend reunification therapy with his father on a weekly basis with the therapist of Mr C’s choice.

68. Care and Control Orders should include the option once he is enrolled at boarding school of two overnight visitations with Mr. C per fortnight when deemed appropriate by a mental health professional. The long-term goal should be of achieving a 50/50 week-on, week-off shared split during school holidays.

69. Should N continue to refuse access with Mr. C, N should have the option of staying/returning to boarding school rather than Ms. Ch’s care with the hope of giving Mr. C an opportunity to build his relationship with N rather than continuing to favor N spending time with Ms. Ch.

70. Ms. Ch and Mr. C should be mandated to continue to jointly instruct a parenting coordinator. This neutral third party can monitor the effectiveness of their parenting strategies and child abuse potential presented at any given time in order to warn the appropriate authorities if deemed necessary.

71. Parent and teacher data reveal that N continues to experience many of the symptoms associated with ADHD. It is recommended that he undergo detailed assessment to identify underlying causes of his distractibility, poor organization and planning and variable attention span so that supportive strategies can be implemented if indicated.

37.Again, I largely accept what is stated here. In particular, I accept that it would be both cruel, unwise and possibly trauma inducing to “flip” the current order for care and control. I also accept that boarding school may be a good option for N. But, from a practical perspective, it is clear that it will not be possible for N to go to boarding school immediately in Hong Kong. The parties are now agreed that there is only one possible candidate. This is an extremely good school. Competition for school places is very fierce. There is no guarantee that N will get in. I agree however, that an application should be made. I also agree that both N and his father should be mandated to attend Reunification therapy and a direction shall be made to that effect. As indicated above, I also agree that N should have a full educational assessment in order to determine whether he does have ADHD, or something similar and whether or not he therefore needs other forms of assistance from an educational perspective.

38.Dr Craigen also makes some proposals with respect to access. Although this is of some interest, it seems to me that the court should be guided by the Reunification therapist in this respect. The recommendations are also made on the premise that N will be attending boarding school shortly and this is by no means certain at this point in time.

The Social Welfare Reports

39.As indicated above there have been three reports filed. I am largely concerned with the last two reports. Social Welfare Reports are generally regarded as being the “ears and eyes of the court” and they provide a very valuable function in that respect. However, the recommendations made are not binding on the court. If the court does not agree with the recommendations made, then reasons should be given. In this instance, and as indicated above, the recommendations made by Mr Tang, were somewhat overshadowed by the Updated Child Psychological Evaluation Report. I was also somewhat perturbed initially in that Mr Tang did not mention access at all in his final report. When I queried this at the end of his examination, he said that he stood by his recommendations made in his second report, despite the fact that they had clearly not worked. These stated as follows:

29. For N’s resistance to go to Mr C’s home, one of the reasons may relate to the unresolved conflict of the parents and his loyalty issue. The presence of independent third party may increase N’s acceptance. However, the primary function of the independent third party should be to give N emotional support instead of monitoring and it is not a matter of impartiality. Since the domestic helper has taken care of N for years, it is no doubt that she is a familiar and most suitable person for supporting N’s emotion if visitation to Mr C’s home is arranged. Nanny could be the second choice and it is better for her to be informed of N’s situation and need of emotional support. Moreover, the presence of Dr POON (N’s therapist) as the independent third party is considered not appropriate as it may cause N to feel the visitation as a therapeutic situation.

30. Considering N’s condition, the parents’ views and the existing interim access arrangement, the Investigation Officer inclines to recommend for your Honor’s consideration that the Petitioner be granted the defined access as follows;

a. Indirect access by telephone or video call every Thursday night;

b. Direct access to N on Week 1 is Friday from after school until 8:30 p.m. and Saturday from 12:30 p.m. to 8:30 p.m.; and Week 2 is Sundays from 11:30 a.m. to 8:00p.m., and so on;

c. The presence of an independent third party is required if the access take place at the Petitioner’s home on Saturday or Sunday. Details to be agreed with the Petitioner and Respondent;

d. For the school holidays on Christmas, Chinese New Year and Easter Holiday, it would be 50/50 shared by the Petitioner and the Respondent; and

e. For the summer holiday, after excluding the days of N’s. summer camps, the remaining days should not be less than half of summer holiday and would be 50/50 shared by the Petitioner and the Respondent.

40.As indicated above, similar approaches to access can be found, for example, in the court orders dated the 27 November 2020 and the 28 April 2021. They have not worked. In particular, the presence of a third party, whether the mother’s domestic helper or an independent Nanny, from a Nanny Agency, has not helped the situation. In his last report dated the 9 June 2021, Mr Tang did not support the boarding school option. Of course, at that point, Mr Tang was not to know that the mother would ultimately agree that boarding school might be considered for N. There is no dispute with respect to custody and I agree with his position with respect to care and control. However, it seems to me that a different approach is called for with respect to the other ongoing difficulties concerning access.

Dr Zaidi’s psychological reports on the parties

41.Dr Zaidi saw each of the parties and provided a report on both of them accordingly. As with Dr Craigen, I found these reports to be incredibly insightful and helpful. Although she was vigorously examined, she nevertheless remained firm in her views.

Psychological Opinion on the Father

42.In summary Dr Zaidi confirmed that the father’s test results showed low levels of depression and anxiety. In other words, the father is basically psychologically healthy and there is no underlying reason from that perspective why he should not be able to have a functioning relationship with his son. She also confirmed that he had some low scores in the parent relationship questionnaire, which in her view was unsurprising given the fact that the father sees so little of N.

Psychological Opinion on the Mother

43.This was of more interest in that Dr Zaidi was able to identify attempts by the mother to “play the system”. In her report she said as follows:

29. The summary of results of the PRQ self-report show that Ms. Ch reports a level of attachment, communication, involvement with her child that is higher than that in the typical relationship between a parent and child of a similar age.

…

PSYCHOLOGICAL OPINION

32. During the assessment, Ms. Ch presented with emotional distress, anger, frustration and anxiety, which is normal and natural, given the prolonged ongoing conflict over access arrangements. Ms. Ch has a strong passion for protecting her only son. She reports she has been committed in following what has been dictated to her by the courts and the professionals. She feels that what the professionals believe to be in the best interest of her son do not necessarily align with what she sees is best; specifically, around the access times and arrangements.

33. Although the psychometric self-reports seemingly show no areas of concern, raw scores of zero for BSI and BDI II have to be viewed with caution and this denial of challenges needs further exploration in her individual therapy sessions. There is a mismatch between how Ms. Ch emotionally presented in person and what she has reported for BSI and BDI II.

34. The parent relationship questionnaire also shows areas of concern where the scores are in the significantly above average and extreme above average range. These areas need to be monitored for relational challenges that could impact N in the future.

35. Ms. Ch’s presentation, her concerns, and her anxiety levels are understandable in the context of the court process and her fear of “divide with her son” as she stated in one of the interviews. The most recent social services report also notes that Ms. Ch “feels exhausted and overwhelmed by the prolonged argument with Mr. C on access arrangements.” This is in line with what was observed in interviews with Ms. Ch.

36. In light of these highly unusual psychometric results where the self-report data and presentation of Ms. Ch do not match, a DSM 5 diagnosis is not possible.

37. However, it is my strong belief that Ms. Ch truly wants what is in the best interest of her son. She continues to lack insight into her own negative perceptions of Mr. C and the negative impact this has on “their” son. This lack of insight and awareness of impact upon her son needs to be directly addressed in therapy for her to see beyond her hurt of the ending of the marriage.

RECOMMENDATIONS

38. It is my opinion that Ms. Ch will benefit from psychological therapy to help her work through her anger, related to her relationship with Mr. C and the ensuing conflict regarding access arrangements. This would benefit both Ms. Ch and would be in the best interest of, her son, N, and his future relationship with his father.

44.Consequently, she made a number of recommendations for the mother, including psychological therapy for herself, something that the mother has not fully accepted to date.

The character of the parties

45.I should add that in all cases concerning children it is important for the judge hearing the case to see the parties in the witness box in order that she may form some view of them for herself. This case was no exception. In this instance I have had the benefit of seeing both sides in court over a long period of time. On this occasion however, both of them also gave evidence. It is clear that they are both bright and well educated. It is also clear that both sides have become very invested in this conflict and that neither of them is completely blameless in this respect. As one might expect perhaps, the mother presents as being quite controlling and she says that she is also quite a tough parent. I would accept that analysis of herself. Along with a great many other parents in Hong Kong she places a lot of emphasis on academic pursuits and N’s “down time” appears to be highly structured. In contrast the father has a more laid back demeanour. He says that he just wishes to have an opportunity to have a relationship with his son. Both parties blame the other for the current situation and neither seems able to accept responsibility for their own part in the current impasse. It is clear that as a result N is suffering and that he is clearly caught in what one well known psychologist in Hong Kong describes as the “miserable middle”.

Ms Mueller’s parenting co ordinator’s reports

46.Ms Mueller filed two reports dated the 31 March and 10 June 2021. In the second report she helpfully suggests that

9. Going Forward

Whatever the Judgement, I suggest a joint scripted approach by the parents to explain the contents of the Judgement to N. The idea is to create a Secure Functioning and supportive environment for N. Ideally the script should to be devised together with N’s counsellor or someone who has experience of N.

Whilst it is of note that N is currently refusing to attend counselling, the idea is nonetheless a good one.

The Views of the Child

47.In this instance the mother was firmly of the view that I should see N and she said, time and again that N wished to see me directly. As indicated above, she had also facilitated N writing to me, in a way that was totally inappropriate and, with respect, showed a distinct lack of insight on her part.

48.At the end of the day, I decided not to see N, largely because one of the central issues i.e., whether or not he should attend boarding school, had yet to be discussed with him. It seemed to me that this should, most certainly, not come from me in the first instance. I was also concerned that this child might already be under severe psychological strain and in some distress and had noted that he had reacted in a very extreme manner during some of the family therapy sessions (i.e., curling up into a foetal position, very high heart rate etc). In such circumstances I chose to tread carefully and decided on balance that it might not be appropriate to see him directly.

49.I was also concerned that he should not be given the wrong impression. As I have indicated to both of the parties previously, the views of N are not determinative. His views are one aspect of the case that the court should take into account when considering the matter overall. It is true that as children get older their views should carry more weight. However, in a case like this, where N already clearly has a favoured parent, his mother, and an arguably enmeshed relationship with her, then with respect his directly expressed views must be approached with a certain degree of caution.

50.Further, it is very important that he should not be put in a position where he believes that he has the ability to “choose” whether and when he should see his father and for what periods of time, or to what extent he will ultimately choose to comply with an order from the court. To that end it is of note that N has already decided not to participate in individual therapy for himself.

On a balance of probabilities can it be said that the mother has “alienated” N from his father?

51.The mother says that she has been accused of “unintentional alienation”. I agree that this is the inference that may be drawn from some of the documents filed. However, this conclusion is not supported by Mr Tang, or interestingly, in the final analysis by Dr Craigen, who was particularly careful to steer clear from such labels in the witness box, pointing out that these are very complex and difficult matters.

52.Generally, and as set out in paragraphs 35 and 37 above, I accept Dr Craigen’s analysis of the situation. Further, as is suggested in the case Re: S, in paragraph 30 above, I also accept that in this instance it cannot be said that N’s resistance towards his father is completely unjustified, although much of it appears to be rooted in the unsatisfactory nature of the family dynamic from a historical perspective. However, it is also of note that there have been incidences of domestic violence and I agree that it is not helpful to simply try to gloss over these.

53.It is also possible that the mother may have referred to the 2014 incident in particular, in a way that was less than helpful (i.e., by referring N’s teachers to this incident, infront of him, for example). I accept that this sort of behaviour has an alienating aspect to it.

54.All in all, whilst I accept that there have been some alienating type behaviours on the part of the mother, it seems to me that these behaviours are at the lower end of the spectrum. I further accept that the situation is far more complex that this analysis allows and that both parties have had a role to play in the present impasse.

Should there be a reversal of the current order for care and control, in that care and control should be vested in the father?

55.In such circumstances, I do not agree that this is a case which warrants a reversal of the existing order granting care and control to the mother. N is close to his mother. All of the experts agree that the Respondent is a very good mother. I agree with Dr Craigen, in that it seems to me that “flipping” care and control could be extremely damaging to him. It is also of note that this is not recommended by Mr Tang, or indeed by anyone else involved in this case. In particular, the father’s assertion that although “flipping” care and control may be traumatic for N, but that this would be less damaging than allowing the status quo to continue, is not supported by any of the experts.

56.I am also mindful of the fact that the father is not currently ready to take N. He is living is a small studio flat of 420 square metres in Tai Po. It is not a familiar environment for N, although this is not for the want of trying on the father’s part. It does not have two designated bedrooms, although a second bedroom can be made up by the use of a sliding door. The father does not have a domestic helper. He also lives quite a long way away from N’s school. Although the father’s travel is currently curtailed because of Covid, longer term he will most likely be required to travel, even if it is not as extensive as it was before. The father has said that he intends to move to a flat nearer the school, that he intends to employ a domestic helper and that, if necessary, he can take a period of time off work. But the fact remains that he has done none of these things. He is simply not in a position to immediately take care of N or for N to move in and live with him on a fulltime basis.

Can or should that order be suspended?

57.From a general perspective, I have some concerns about the appropriateness of a suspended order of this type when one is dealing with what is ultimately in the best interests of a child. It also puts the entire onus on the mother i.e., it is for the mother only to right the situation, it is for the mother only to make N comply with the court order and if that does not happen then care and control, on the basis of the father’s proposal, is automatically “flipped”. This cannot be right. At the very least there would need to be a further analysis of the situation to see if the fault truly lay at the mother’s feet. In any event, and as indicated above I think the situation is far more complicated than that and I remain of the view that the fault for the present impasse does not lie entirely with the mother. It seems to me that going forward both parties will need to work on the current situation if it is to right itself satisfactorily.

In the alternative, should there be a therapeutic response to this case and if so, what is it and how should it be managed?

58.Despite the lack of progress in this regard, it still seems to me that a therapeutic response is what is needed here. The father has suggested reunification therapy with N, with either Dr Amanda Oswalt-Vischer or with the London Separation Clinic, in consultation with a local therapist. It was not known at the time that the closing submissions were filed whether or not the London Separation Clinic would be willing to take this case on. Consequently, in the first instance, I shall adjourn this aspect of the case for further directions. As an indication however, my preference at present, in the event that the London Separation Clinic is agreeable, is to order Reunification therapy between the father and N, through the London Separation Clinic with the assistance of a local therapist. I shall also direct that the mother participates in that process as directed. This may include her agreeing to have some other form of therapy for herself in addition to attending sessions as directed and as required.

59.The father has asked that both parties should share the cost of this. The difficulty with that proposal is that although the father does pay for N’s school fees and for other related educational expenses, together with a monthly maintenance sum, he is still earning significantly more than the mother. In such circumstances and bearing in mind that the parties are already sharing the cost of the Parental Co ordinator, I shall also order that the father do bear the costs of this in the first instance.

Should consideration be given for N to attend boarding school and if so, should that be in Hong Kong or in Canada and should he attend as soon as possible or from August/September 2023, at the earliest?

60.Both parties now agree that consideration should be given for N to attend boarding school. This seems like a sensible option for all of the reasons identified by Dr Craigen. However, to date no applications have been made, either for Harrow in Hong Kong, or for one of the Canadian boarding schools identified. Thus, in the first instance applications should be made for N to attend boarding school either in Hong Kong with effect from August/September 2022 or 23 or in Canada with effect from August/September 2023. Although Dr Craigen was keen that N should attend boarding school as quickly as possible, it is hard to see how that is possible from a practical perspective. I am also cognizant of the ongoing difficulties caused by Covid-19. It does not seem reasonable to expect N to possibly go overseas to study, if it is also not possible for his parents to visit him, or for him to return to Hong Kong for the school holidays without first having to undergo strict hotel quarantine. Thus, I am approaching this from the premise that applications should be made for N to attend Harrow with effect from either the summer 2022 and/or 2023 or alternatively to attend boarding school in Canada with effect from August/September 2023 only. Once the outcome of those applications is known then the parties may consider their options with a view to hopefully agreeing which school N should attend. In the event that an agreement cannot be reached then ultimately the court will need to decide.

Should any orders be made for access?

61.I do not intend to make any orders for defined access either during term time or over the school holidays, in the immediate to short-term pending the father and N entering into Reunification therapy. I think it is important to be guided by the experts in this respect. Consequently, I shall suspend access in the short term with a view to making a further order once I have had sight of any recommendations made by the Reunification therapist/s, hopefully after a further 3 months or so. Longer term the hope would be for N to have regular access with his father including weekend and holiday access. Depending on how things develop and where N attends school, this may or may not be along the lines proposed by Dr Craigen.

Should any other orders/directions be made?

62.Although I have decided not to make a suspended care and control order, that does not mean that I am unconcerned about compliance. Thus, although unusual I shall also endorse a penal notice on this order, with liberty to apply on an urgent basis.

What order should be made for costs?

63.This was a very difficult case, but from a litigation perspective I can see no reason why a standard order should not be made for costs given that it is a child related matter. Consequently, I shall make an order nisi to be made absolute in 28 days’ time that there be no order as to costs.

Order and directions

64.Thus, an order shall be made as follows:

i)   For the avoidance of doubt order 1 contained in the court order dated the 3 December 2018 shall remain in place in that the parties shall continue to enjoy joint custody of N with care and control to the Respondent mother;

ii)  All access shall be suspended in the short-term pending receipt of a report from the Reunification therapist which shall contain inter alia recommendations for access;

iii)  For the avoidance of doubt the second part of paragraph 1 and paragraph 2 of the Petitioner’s amended summons dated the 29 April 2021 which states as set out below, shall be dismissed

1. … the Order dated 3 December 2018 be varied to the effect that care and control be granted to the Petitioner [father] with N moving to live with the Petitioner with immediate effect and access to the Respondent to be determined.

2.   In the alternative and as the Court sees fit the care and control Order as referred to in paragraph 1 above be suspended for a period of three months pending improvement of the current matters on the basis of the Petitioner's proposals as to access as set out in paragraphs 4-9 below. If there is no improvement after three months from the date of the Order, there should be an immediate change of N's residence as set out in paragraph 1 above.

iv)  There shall be a callover with respect to access and the boarding school applications, on the 26 April 2022 at 9:30 a.m.;

v)  Both parties do personally attend that hearing;

vi)  There shall be an order nisi to be made absolute in 28 days time that there be no order as to costs;

vii)  There shall be liberty to apply on an urgent basis;

viii)  a penal notice shall be endorsed on this order.

IT IS FURTHER DIRECTED THAT: -

ix)  The Petitioner shall have reunification therapy with N, with a therapist of his choice, which he currently states to be either the London Separation Clinic, in conjunction with a local therapist or with Dr Amanda Oswalt-Vischer;

x)  The Respondent shall also participate in this therapy as directed by the therapists and she shall also undertake further therapy if so required;

xi)  The solicitors for the father shall write to the court within the next 14 days with an update with respect to the choice of therapist;

xii)  The Reunification therapist shall file a short report, inter alia with recommendations for access, 14 days prior to the callover on the 26 April 2022;

xiii)  N shall have a full educational assessment in order to determine whether he does have ADHD, or something similar and whether or not he needs some form of assistance from an educational perspective. Such report shall be filed at court prior to the callover hearing. The cost shall be split between the parties on an equal basis;

xiv)  The parties shall jointly apply for N to attend one of the following schools as a boarder:

a)  Harrow International School, Hong Kong, for entry in either 2022 or 2023

b)  St Andrew’s College, Toronto (“SAC”), for entry in 2023

c)  St George’s College, Vancouver (“SGS”), for entry in 2023

d)  Upper Canada College, Toronto (“DeC”), for entry in 2023.

xv)  Such applications to be made forthwith and with the assistance of the Parental Co ordinator, if necessary;

xvi)  The parties shall continue to employ Ms Maureen Mueller as their parental Co ordinator and her costs shall continue to be split equally between the parties;

xvii)  Ms Mueller shall also file a short-updated report 14 days prior to the callover hearing referred to above;

xviii)  It is further directed that, as set out in paragraph 46 above and as recommended by Ms Mueller, a joint script shall be prepared in order to inform N of the contents of this judgment. In the absence of any agreement, Ms Mueller shall assist the parties in deciding how this information shall be imparted to N.

Ms. Mairead Rattigan instructed by Haldanes for the Petitioner

Mr. Giles Surman instructed by CRB for the Respondent