Scr v. Msk

FCMP 28/2021

[2023] HKFC 57

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDING

NO. 28 OF 2021

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J U D G M E N T

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Background

1.The respondent Father (‘the Father’) was born in 1963 (now 59 years old).  He was a middle ranking civil servant and has retired from work since February 2023.  The Applicant Mother (‘the Mother’) was born in the Philippines in 1971 (now 51 years old) and was married to another man in 1987.  She and her husband were separated.  She has three other children, all now adults and are self-supporting.  The Mother came to Hong Kong in 2000 and worked as domestic helper for the Father, his wife and son.  During the employment, when the Father’s wife was not present he would touch the Mother and this subsequently escalated to sexual intercourse that led to the birth of a girl (‘the Child’) on 20 October 2008 (now 14 years old).  No father was named on the Child’s birth certificate but there is no dispute that the Father was the biological paternal father of the Child.  The Child was born in Hong Kong and has the right of abode here.

2.The Child’s care arrangements have been set out in the parties’ respective chronologies.

(a)  The Child was born on 20 October 2008 and after maternity leave the Mother returned to the Philippines with the Child on 25 December 2008.

(b)  Between December 2008 and October 2010, while the Child was in the Philippines the Father provided financial support.

(c)  Between October 2010 and April 2019, the Mother and the Child returned to Hong Kong and they resided in different flats rented or purchased by the Father.  The Father lived with his family and he would visit the child.

(d)  In August 2011, the child attended K.1 at an ESF international kindergarten.

(e)  In August 2013 the child attended Year 1 at an ESF junior school.

(f)  In December 2017 the Mother’s application for foreign domestic helper visa was refused as there were doubts about her relationship with the Father.  The Mother was allowed to stay in Hong Kong until April 2019 pending determination of her application for permission to remain that was subsequently refused.

(g)  Between April 2019 and June 2019, the Mother left the Child with the Father while she returned to the Philippines.

(h)  In April 2019, the Father and her wife were separated.

(i)  In June 2019, the Mother came to Hong Kong with a visitor’s visa.

(j)  Between June 2019 and September 2019 the Mother, Child and Father resided together. 

(k)  In September 2019, the Mother was allegedly assaulted by the Father.  Then, the Mother and the Child moved into a shelter and they stayed there until November 2019.

(l)  In October 2019, the alleged assault was disposed of by way of a binding over order.

(m)  In November 2019, the Mother and the Child returned to the Philippines.

(n)  In December 2019, the Mother and the Child returned to Hong Kong.  The Child resumed her education in Hong Kong.

(o)  Between December 2019 and January 2020, the Mother, Father and Child resided together in a flat in Hong Kong.

(p)  Between January 2020 and February 2020, the Mother and the Child resided together in the flat of the Mother’s employer.

(q)  In February 2020, the Mother and the Child returned to the Philippines and stayed there until August 2020.  The Child continued to attend classes via zoom.

(r)  In August 2020, the Mother entered into a domestic helper contract with a new employer and the Mother and the Child returned to Hong Kong.

(s)  Between August 2020 and September 2020, the Child stayed with the Father in his flat as the Mother had to work full time as a domestic helper.

(t)  In September 2020, the Mother made a complaint to the Police that the Father sexually assaulted the Child and the Child was moved to stay in a shelter.

(u)  On 25 September 2020, Multi-Disciplinary Case Conference (“MDCC”) was held and the attending experts concluded that the Mother’s complaint of Child maltreatment was not established.

(v)  The police did not take any follow-up action against the Father.

(w)  Between September 2020 and November 2020, the Child stayed in shelter.

(x)  In November 2020, the Mother placed the Child to live in Precious Blood Children’s Village (‘PBCV’) and she stayed there until July 2021.

(y)  During the summer vacation time between July and September 2021, the Child took home leave from PBCV.  The Mother and the Child stayed in hotel room paid by the Father.

(z)  By the Order made by the Deputy District Judge S Wong on 28 October 2021, the Child was removed from PBCV and continued living in hotel room paid by the Father until present.

3.Ms Tsang, social work officer, produced social investigation reports dated 18 June 2021, 15 October 2021, 26 May 2022 and 21 October 2022 respectively.

4.In the report dated 26 May 2022, Ms Tsang said:-

Child’s Care condition after the CDR of 28.10.2021

6. Upon the mutual agreement of the parents, the Child was discharged from PBCV on 7.11.2021.  The Father booked, a hotel room for the Child and the Mother to stay in Shatin till now.  The hotel room, measuring of around 30 sq. m，was a twin-bed room with furniture and facilities adequately equipped.  Besides, the Mother placed a rice-cooker, a food processor and an extra refrigerator in the room to facilitate her meal preparation.

7. The Mother reported that she often returned to the hotel room to take care of the Child once she finished work at her employer’s home at 12:30pm and at 9:00pm.  She then slept overnight at the hotel room.  After she got leg pain, she stayed at hotel room in most of times.  Besides, she prepared lunchbox to the Child for her school day.  She also made dinner for the Child as if the Father did not bring the daughter for dine-out.  On her rest day, the Mother brought the Child to beach, hiking and shopping mall nearby for leisure.  Upon the Mother’s resumption of work in 17.5.2022, the Mother said that she only attended the morning session work (i.e. 10am to 2pm) at the employer’s place so that she could have more time to take care of the Child.  The Mother revealed that the Father sometimes did not follow the interim order to have dinner with the Child that has burdened her financial stress in preparing dinner for the girl.  Besides, she disliked that the Father occasionally stayed with the girl too nightly.

8. For the Father, upon the interim order made in last hearing, he often brought the Child outsides for dinner in the nearby shopping malls on weekday nights and Saturday.  As told, the Father and the Child contacted each other directly via text message for arrangement. Sometimes, the Child asked the Father’s assistance in tutorial after dinner. As the Father was not allowed to bring the Child to his home or into the hotel room, he and the Child needed to hang out in public area such as the hotel’s cafe lounge for study.  Unfortunately, starting from 1/2022, owing to the widespread of COVID-19 in the community and the cessation of dine-in catering after 6 pm, the Father was unable to bring the Child outsides for dinner or hanging around anymore.  He then brought dinner to the Child or helped her to order food delivery to the hotel.  Despite the father-daughter’s visitation has been affected, the Father was glad that the Child was active to text him message to update her daily routine.  In late 4/2022, the dine-in catering restriction has been released gradually.  The Father still worried the possible risk of COVID-19 as well as the girl’s weight gain and health for too many outside dinners.  Moreover, the Child occasionally was tired of hanging outsides till 9:30pm on weekday.  So, he accepted the girl to have home-made dinner at hotel room with her mother.  He then brought the girl to have food purchasing 1-2 times weekly so that she and the Mother got adequate food for meal preparation at the hotel room.  Besides, the Father also maintained to visit the Child every Saturday.  They have lunch and/or dinner together subject to girl’s readiness.  The Father also arranged the girl to have hiking, BBQ, shopping or tutorial if she wanted.

These proceedings

5.The Mother as the 1^st Applicant and on behalf of the Child as the 2^nd Applicant took out the Originating Summons filed herein on 2 February 2021 for injunctive reliefs against the Father pursuant to the Domestic and Cohabitation Relationships Violence Ordinance Cap. 189 (“DCRVO”) and for the Child’s maintenance.  By the summons taken out on 3 May 2021 and amended on 30 December 2021, the Father applied for injunctive reliefs pursuant to the DCRVO against the Mother and for custody, care, control of the Child.

6.UPON the Father’s undertaking: - (1) Not to stay overnight with the Child; (2) Not to take the Child to the Father’s flat; (3) Not to go to the hotel room specified below; and (4) To pay interim maintenance to the Mother for the benefit of the Child $2,000 per month,  by the Order made by Deputy District Judge S. Wong made on 28 October 2021, it was ordered that from 9 November 2021 until further order of the court: -

(1)  The Child be removed from PBCV;

(2)  The Father to provide at his own expenses a hotel room located Shatin or any other suitable location, subject to agreement between parties, for the mother and the Child to stay;

(3)  Except as set out below, the Mother can take care of the Child:

(a)  The Father can take care of the Child from 6:00 p.m. to 10:00 pm every night during weekdays, save and except for statutory holidays, for the purpose of overseeing her homework, spending time with her and giving her dinner, at a public location;

(b)  The Father can take care of the Child every Saturday, save and except for statutory holidays, for the purposes of, inter alia, taking her to piano and painting classes, from 10:00 a.m. - 9:00 p.m. at a public location.

7.By the order dated 17 March 2022, the parties’ cross applications for injunctive reliefs were disposed of by way of mutual undertakings and it was further ordered that the hearing of Mother’s claim for maintenance was adjourned to a dated to be fixed after the determination of children matter and the trial of the Father’s application for custody, care, control and the question of access was fixed to commence on 18 July 2022, with 19 and 20 July 2022 reserved.  By the letter of solicitors for the Mother dated 15 July 2022, the court was informed that trial counsel for the Mother was tested positive for covid-19 and had to undergo quarantine until 29 July 2022.  By the order dated 18 July 2022, the above trial was re-fixed to 11 November 2022, 2 December 2022 and 6 December 2022 and it was further ordered that in addition to the interim access arrangements pursuant to the order made by Deputy District Judge S Wong on 28 October 2021, the Father do have stay access on the 3^rd weekend from Saturday at 6 p.m. to Sunday 9 p.m. in August, September, October, November and December 2022 or until further order of the court.

8.By the summons filed on 5 August 2022, the Mother applied for the court’s leave to enroll the Child to a boarding school in Hong Kong. By the letter of solicitors for the Father dated 18 October 2022, the Father sought the court’s leave to issue a counter school summons and to have the same fixed to be heard together with the trial commencing on 11 November 2022. It shows from the draft summons attached thereto that the Father’s proposed application was for an order that there be leave to the Father to enroll the Child with boarding school in the UK.  In the social investigation report dated 21 October 2022, Ms Tsang reported that the Mother had decided to put aside the application for the court’s leave to enroll the Child to boarding school in Hong Kong and the Mother was agreeable to the Child attending boarding school in the UK.  By the order dated on 3 November 2022, it was directed that the court would hear the parties’ submissions on the Father’s application for leave to issue the counter school summons etc. on 11 November 2022.  Just minutes before the trial on 11 November 2022, at the eleven hour, counsel for the Father told the court that the Father was going to apply for the court’s leave to enroll the Child to boarding school in the UK but had a change of heart and decided to apply for leave that the Father could take the Child with him to attend day school in the UK.  The Mother strongly opposes to the Father taking the Child to live with him alone in the UK.  In view of the above sudden change of position on the Father’s part and the Mother’s strong opposition, the Father’s application for leave to issue his proposed summons as per proposed amendment and to have the same to be heard together with the present trial was refused.  By the order dated 11 November 2022, it was ordered that the Mother’s summons filed on 5 August 2022 be dismissed with no order as to costs save that the Mother’s own costs be taxed in accordance with Legal Aid Regulations.  In early December 2022, I was tested positive for covid-19 and was unable to preside over the trial on 6 December 2022.  By the order made by Deputy District Judge Jacqueline Lee on 6 December 2022, the trial on 6 December 2022 was re-fixed to 27 January 2023.

9.This trial concerns the Father’s application for custody, care, control and access in respect of the Child.

10.Both parties and Ms Tsang testified.  The parties have not called any witness to give evidence in court.

The parties’ respective proposals

11.Both parties seek an order that he or she do have custody, care and control of the Child.  The Father offers that the Mother will have reasonable access while the Mother requests defined access to be granted to the Father along the existing arrangements.  She considers that the Child is not safe to be alone with the Father and opposes any stay access.

The Law

12.Section 19 of the Matrimonial Proceedings or Property Ordinance (Cap 192) (“MPPO”) provides that the court may, in any proceedings for divorce, nullity or judicial separation, make such orders as it thinks fit for the custody and education of any child.

13.Section 3 of the Guardianship of Minors Ordinance (Cap 13) (‘GMO’) requires the Court to have regard to the best interests of the child as the paramount consideration:

“3. General Principles

(1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property-

(a) in any proceedings before any court (whether or not a court as defined in section 2) the court-

(i) shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to-

(A)the views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

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

(ii) shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father;

(b) except where paragraph (c) applies, a mother shall have the same rights and authority as the law allows to a father， and the rights and authority of mother and father shall be equal and shall be exercisable by either without the other:

(c) where the minor is illegitimate -

(i) a mother shall have the same rights and authority as she would have by virtue of paragraph (b) if the minor were legitimate;

(ii) a father shall only have such rights and authority if any, as may have been ordered by a court on an application brought by the father under paragraph (d);

(d) the Court of First Instance or a judge of the District Court may, on application, where it is satisfied that the applicant is the father of an illegitimate child, order that the applicant shall have some or all of the rights and authority that the law would allow him as father if the minor were legitimate.

(2)  Subsection (1)(a) shall have effect as regards any application under subsection(1)(d).”

14.In considering the appropriate orders to make, the court may seek additional guidance from the following welfare checklist. The checklist is an “aide-memoire designed to ensure that none of the factors potentially relevant for a court considering a child’s welfare generally in the circumstances of each particular case is left out of account”.[1] The court is not strictly speaking required to have regard to the checklist.  Nor is it necessary for the court to set out each listed factor mechanically in order to demonstrate that each of them has been considered.[2]  The checklist gives the following matters as those the Court should consider in determining the appropriate order to make:

(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 of the child that 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 that 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)  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.

My View

The ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding;

15.In the report dated 15 October 2021, Ms Tsang said:-

View of the Child on Custody, Care and Control and Access

36. Individual interviews with the Child were arranged at the office of the Social Work Officer and PBVC.  She spoke English in the interview.  She clearly expressed her wishes and opinions.  For the present child custody dispute, the Child said she knew the parents had different views on her caring matters. She understood that both parents loved her and she felt happy to stay with them indeed.  She liked to spend time with the mother for shopping and eating.  She also felt happy to stay with father who shared her of interesting things always.

37. She mentioned that she did not want to live in the PBVC anymore. She expressed it was “both OK” for her to live with either the mother or the father in HK.  However, she did not know what abode would be if she lived with the mother in HK. Besides, she had great worries the mother would bring her to the Philippines again as she did not want to live and study there.  So, she considered living with father was a feasible option at this stage.  She said ‘it is OK’ for her to return to the Father’s home as she familiarized with the living environment there and there was around 30 minutes for her to and from the school.  For her daily care, the Child, although the father had a full-time job, he still prepared breakfast and dinner for her when they lived together before.  Reportedly, the Father used to be the one to handle her studies, learning activities, etc.  She considered the father’s advice to her was helpful and gave her insight.  The Child knew the mother disliked her to stay with the Father.  She used to keep silent when the parents made comment to each other.  The Child denied any unhappiness incident or experience with the Father.

16.In the report dated 26 May 2022, Ms Tsang said: -

View of the Child on Custody, Care and Control and Access

21.  The Child was interviewed individually on 13.5.2022 and 21.5.2022.  She knew parents still have arguments on her custody matters. She understood both parents loved her and wanted to take care of her.  She revealed good relationship with both of them.  So, she did not mind to live with the Mother or the Father as long as she could maintain regular visit with each parent. She alleged that she noted the mother disliked the father to stay with her but she found the father has not done any harmful or inappropriate act to her before.  The Child later added if she lived with the Mother, she thought the mother would not be ready for her to see the father freely.  If she lived with the Father, she believed the father would not intervene her visitation to the mother.  If so, she preferred to live with the Father for a better way to remain relationship with both parents.  Besides, the Child also revealed that the Father used to provide her guidance and actively involved in her welfare planning.  So, she was eager to discuss with him or sought his advice before she made decision on her study and future plan. Further, she also hoped to resume a home-like living condition so that she could own a family life as far as possible.

17.It was reported that the Child clearly expressed her wishes and opinions. While she does not mind to live with the Mother or the Father, the Child prefers to live with the Father for the reasons given in the above paragraph 21 of the report dated 26 May 2022.  In the concluding remarks and recommendation of the report dated 15 October 2021, it was said the Child was impressed to be a mature, understanding and sensible teenage girl.  She always keeps herself in good behavior and maintains harmony relationship with both parents.  She has clearly expressed her view and readiness to be under the care of the Father.  She considers the Father’s advice on her education is helpful and insightful.  I regard that I should give weight to her wishes and opinions.

The child’s physical, emotional and educational needs;

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 her needs;

18.Though the Mother has been actively involved in the day-to-day care of the Child since birth, seemingly a paradox, the first and foremost issue in the present case is the Mother’s capability to take care of the Child and to meet her needs.  The Mother is criticized for having removed the Child from Hong Kong to the Philippines several times.  The Father finds fault with the Mother’s decision to have placed the Child in PBCV, in respect of her stance on UK boarding school, and for her plan to enroll the Child to boarding school in Hong Kong.  In the Father’s words, if sole custody is to be granted to the Mother, she will fail to meet the best interests of the Child and may even harm her development.

19.I regard that the Father’s harsh criticisms of the Mother’s capability of taking care of the Child are mostly unjustified. I bear in mind that the Mother has no right to live or work without a visa in Hong Kong.  I recognize that in circumstance she has to make difficult decisions such as removing the Child from Hong Kong to the Philippines from time to time in harsh realities of the situation that she needs to take care of the Child, an illegitimate child, with little financial control and resources in Hong Kong.  I also accept that the court ought to give consideration to the fact that the child has been cared for primarily by the Mother for most of her life and she is doing well in school and appears to be happy.

20.Taking an overview of the past caring arrangements, my observation and assessment, I accept that both parents would be capable of providing proper care of the child if he or she has the care and control. 

21.As to the Father’s comment that the Mother might not be able to provide the Child with a homely living environment, although it is submitted that should the court grant custody, care and control to the Mother then the disparity in ability to provide for the Child can be dealt with at a later hearing for maintenance, I take the view that the Mother’s capability to take care of the Child in Hong Kong is nevertheless hindered by the fact that she has no right to live or work without a visa in Hong Kong.  The court has raised concerns regarding the Mother’s status in Hong Kong post-September 2023.  The Mother stated at trial that she was confident that she would be able to obtain a new employer, even in the event her current employer did not renew her contract. It is submitted that according to the employment contracts before the court, the Mother has stayed in Hong Kong since 2000 i.e. for over 20 years with only brief lapses in between.  It is submitted that this should be an indicator that the situation is likely to continue into the future.

22.I take notice that she has been under contracts of employment in Hong Kong with the Father until 2019.  That is to say, her track record of employment in Hong Kong with employer aside from the Father started only from 2019 to present.  The Mother is permitted by her current employer to leave early to care for the Child and stay with her overnight.  The Mother was asked about her current work duties and she explained that she did not sleep at her employer’s house at night and that she normally left at 5 pm and reported to work in the morning at 9:30 am.  She said that she was not required to cook dinner because her current employer had two helpers and the other helper was the helper at night.  When asked by the court she said that her current visa would end in September 2023 and her plan was to continue to stay in Hong Kong if her daughter was here.  At one time, the Mother told the court that her current employer indicated that she would renew the Mother’s employment contract.  The Mother was asked to produce a letter of confirmation from her current employer.  At the resumed hearing she was asked again about a letter from her current employer and she said that she had been told it was too early to “recontract” her now.  Instead, she produced a letter signed by an unknown person who purportedly wrote that she planned to hire the Mother in the near future.  The Mother further said this prospective employer was ready to allow her to leave early to take care for the Child during employment.  The Mother was adamant that she did not wish to call such prospective employer to give evidence in court.  Given that it is impossible for the Father to test the veracity of the contents of the letter in the circumstance, I give no weight to the contents of the letter.

23.The Mother was confident that if her current employer did not renew her employment contract.  She would find alternative employer that would allow her to leave early to take care of the Child during employment.  It is however undisputed or indisputable that it is unorthodox in foreign domestic helper employment in Hong Kong that the helper is not required to cook dinner and is allowed to leave early and not to sleep at the employer’s place.  I take the view that the chance that the Mother can continue her current employment or find alternative employer that will allow her to leave early to take care of the child is still hung in balance for the months to come.

The Child’s age, maturity, sex, social and cultural background and any other characteristics of the child that the court consider relevant;

24.The Mother’s case is that the Child is approaching her 14^th birthday and as a young woman, the importance of having the care and guidance of her Mother during these pubescent years cannot be underestimated.  The Child is also a mixed race child and the Mother suggests that this may make it more suitable for her to remain under the care and control of her Mother.  Together with the history of the child being under the primary care of the Mother, she contends that maintenance of the status quo is the most suitable outcome. 

25.During cross-examination, when she was asked about the importance of the Mother’s role in the Child’s particular growth stage, Ms Tsang took the view that given the degree of the Child’s maturity, these was no specific need for the Mother to take care of her.  I agree.

The nature of the relationship of the child with each of the child’s parents;

26.In the report dated 15 October 2021, Ms Tsang said:-

Observation on Mother-Child Relationship

24. An observation session between the mother and the Child was held in the office of the Social Work Officer on 26.9.2021. …

Overall, their interaction was pleasant and harmonious.

Observation on Father-Child Relationship

26. The observation session between the father and the Child was held in the office of the Social Work Officer on 26.9.2021. …

Overall, the interaction was close and spontaneous.

27.In the report dated 26 May 2022, Ms Tsang said:-

Observation on Mother-Child Relationship

13.   A joint session between the Mother and the Child was conducted at their hotel room on 21.5.2022. …

Overall speaking, the mother-daughter interaction was smooth and satisfactory.

Observation on Father-Child Relationship

14.   A joint session between the Father and the Child was conducted at the café lounge of Royal Park Hotel in Shatin on 21.5.2022. …

During the process, the father-daughter interaction was spontaneous and harmonious.

28.It is clear that both parents have a good bonding with the Child.

The likely effect on the child of any change in the child’s circumstances

29.It is the Mother’s case that for most of the Child’s life she has resided with her Mother and been under her Mother's care. The only exceptions were that she resided with the Father alone for a total of 3 months (from April 2019 to June 2019 (2 months) while the Mother went to the Philippines, and August 2020 to September 2020 (1 month) while the Mother went to work).  While there were times the three resided together, these times were also short, lasting only around 4 months (between June 2019 and September 2019 (3 months) and December 2019 to January 2020 (1 month)).  It is the Mother’s case that the Child has mostly been under the primary care of the Mother.  It is submitted that if the Father is granted custody care and control this would amount to a substantial change of circumstances, when compared to the situation historically, and that the potential impact of this change on the Child cannot be underestimated.  In view of the above, the court is urged to maintain the status quo.

30.The court is required to consider how well the Child will cope with disruptions that may be caused if the Father is granted the care and control of the Child.  I take notice that the Child has expressed to Ms. Tsang that she is happy to live with the Father and she said ‘it is OK’ to live in the Father’s home as she is familiar with the living environment there.

31.Although status quo is important, its importance would nevertheless need to be assessed on a case-by-case basis, depending on individual circumstance: see L v C [2004] 2 HKC 387.  In cases where both parents have maintained very close contact with the child and the child is thoroughly familiar with the surroundings offered by both parents, the disruption caused as a result of a change in custody will be much less: see Liu Lau Oi Yuk v Liu Chian Hsiang [1997] HKLY 473.  In my view, this is such a case.  Status quo is in favour of the Mother but I do not regard it as a determinative factor in the present case.  I do not foresee that the Child will have any significant adjustment problem if the Father is granted the care and control of the Child.

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

32.Generally speaking, the Mother has been the primary carer of the Child, but the Father has visited the Child on a regular basis, playing with her for an hour or two every day after work, teaching her Mathematics and other subjects, arranging for her extra-curricular activities and sharing his life experiences with her and he has fostered a strong father-and-daughter relationship with the Child.  Except for short periods in 2019 and some seven months in 2020 when the Mother left Hong Kong, the Father has always been providing the Mother and the Child with accommodation in either rented or self-owned flats, or in hotel rooms. Despite that both parents claim the other is an irresponsible parent, having carefully considered all evidence, I accept that both parents are caring and loving parents. 

Any harm that the child has suffered or is at risk of suffering;

33.On 11 September 2020, the Mother made a report to the Police that the Father touched that the Child’s breasts.  I take notice that MDCC was subsequently held and the attending experts concluded that the Mother’s complaint was not established.  Ultimately, it was determined by the Hong Kong Police that there was insufficient evidence to prove that any person has committed a crime.

34.At trial it was suggested to the Father that he touched the Child’s breast and he claimed it was just the Child’s neck.  It is also the Father’s evidence that the Child had told the Mother that the Father had only put his hand on her neck. 

35.I take notice that in the report dated 15 October 2021, Ms Tsang said:-

37. … For the suspected sexual abuse incident, the Child considered it might be unnecessarily reacted by the Mother. 

…

47. ... She clearly expressed her view and readiness to be under the care of the father.  She considered the Father was a reliable parent and was supportive in her guidance and academics.

36.I further take notice that in the report dated 26 May 2022, Ms Tsang said:-

21. … [the Child] noted the Mother disliked the Father to stay with her but she found the Father has not done any harmful or inappropriate act to her before

37.After having carefully considered all evidence, I take the view that there is no evidence that the Child has suffered any harm in the care of the Father or is at risk of suffering any harm if custody, care and control is granted to the Father.

Any family violence involving the child or a member of the child’s family;

38.The Mother claims that she has suffered physical and verbal abuse of the Father and mostly this is supported by evidence such as audio recording and WhatsApp messages.  It is submitted that there is some evidence from the school supporting the contention that there has been an effect to the Child who was reported to be suffering from “mutism”.  It is submitted that regardless of whether or not the child abuse claim is accepted by the court, the Child has been and will undoubtedly continue to be affected by the family violence and abuse perpetrated by the Father on the Mother and that as the Father has shown himself to have a history of violent behaviour towards the Mother, both physical and mental, he is not suitable as the Child’s primary carer.

39.I take into consideration: - (1) As reported by Ms Tsang, the Child could clearly express her wishes and opinions.  She was plainly not suffering from “mutism” while she was meeting with Ms Tsang; (2) There is no trace that the relationship between the Child and both parents has been adversely affected by the Father’s abusive and threatening utterance made in the Child’s presence in the past.  Despite that the parents have had different views on her caring matters, it was said in the report dated 15 October 2021 that the Child understood that both parents loved her and she felt happy to stay with them.  In the report dated 26 May 2022, it was reported that the Child revealed good relationship with both parents; (3) The Father has given his personal undertaking to the court and to the Mother that he shall not whether by himself, his servants, agents or otherwise molest, harass, threaten, disturb or in any manner interfere with the Mother and/or communicate with her using abusive, demeaning, derogatory and/or threatening language, and shall not whether by himself, his servants, agents or otherwise send to the Child any text, voicemail message or otherwise that contains or relates in any way to matters of an adult nature and/or uses profane language and/or demeans the Mother.  The Father has complied, by and large, with such undertaking. It is hopeful that the Father’s abusive and threatening utterance against the Mother are things of the past.

40.After having carefully considered all evidence, I do not accept the Mother’s submissions in the above paragraph 38.

The practical difficulty and expense of a child having contact with a parent, and whether that difficulty or expense with substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

41.In the report dated 26 May 2022, Ms Tsang said:-

31. Towards the access arrangement, the Mother did not agree with reasonable access or staying access to the Father.  She insisted that it was not safe for the girl alone to stay with the Father, no matter it was day or staying access.  She needed to be informed and consulted for the Father’s visitation to the Child.

35. Towards the access arrangement, the Father accepted the Mother having reasonable access to the Child.  Despite the Father somehow worried the Mother might have negative reaction towards the Child during access once the girl reunited with him, he still recognized the importance of the mother’s continual love and care to the Child.  The Father supported the Child to have direct contact with the Mother for access according to her wishes.

42.In the report dated 26 May 2022, Ms Tsang said: -

17. For access, the Mother considered that it was not safe for the Child to stay with the Father alone.  So, she did not agree the Father to stay with daughter at his home or their living abode for whatever reason, unless in the presence of her.  Only defined day access would be provided to the Father.  The Mother also needed to be informed of the access location and time duly.  When she was enquired what was her views on access if she could not get the care and control, the Mother only repeated that she should have care and control of the Child.

20. Towards access arrangement, the Father said he did not want the Child to have any restriction in meeting the Mother.  He supported the Child to have direct contact with her mother whenever she liked.  So, the Father agreed the Mother having reasonable access to the Child.  Similarly, the Father also asked for reasonable access to the Child as if he could not get the care and control.

43.I accept that the Father has shown that he is clearly more ready than the Mother to facilitate the other parent’s access to the Child when he or she has the care and control.

44.Currently, there is a restriction preventing the Child from being taken out of the jurisdiction.  By the order dated 5 May 2021, it was ordered that the Child shall not be removed from Hong Kong without leave of the court until further order.  In the premises, I do not intend to consider the Mother’s worry that if the Father obtains custody, care and control, he will remove the Child from the jurisdiction to the UK, and then the Mother will find it very difficult financially to see her.  Presumably, the court will deal with such issue properly if and when there is an application for leave to remove the Child out of Hong Kong. 

The Social Welfare Officer’s Recommendations

45.In the report dated 15 October 2021, Ms Tsang remarked and recommended as follows: -

Remarks and Recommendation

41. In sum， both the parents showed genuine care and love for their daughter and the Child also maintained good, harmonious relationship and showed trust to both her parents. However, owing to the parent’s disputes, the Child was to be removed from the care of both parents in the past year.

42. Current investigations revealed that the parents’ relationship started from the ‘employment condition’ instead of mutual love or trust as loving partners. They kept their relationship was to perform the role of parents to the daughter.  Unfortunately, the parents got into repeated disputes after the mother was no longer to remain in HK with working visa. Worse still, the relationship later began to falter amidst accusation by the mother that the father had abusive behaviors to her as well as the Child.  It made their communication became full of mistrust and fury.

43. It was noted that the Child has gone through a tough experience in the past year.  Regarding the Child’s welfare plan, it was appreciated that both parents realised the daughter’s unpleasant experience in PBCV and were willing to resolve the issue.  Despite another residential home in Shatin and Ma On Shan area have been waitlisted for the Child, it was undisputable that the language barrier still be a hurdle for the Child to adjust in the group living setting with Cantonese inmates be the mainstream.  Obviously, continuous residential care would not be the best interest of the Child unless there is no other feasible proposal.

44. For the Mother, being a domestic helper, her stay and living in HK was binding by her employment condition. She started her job in Sai Kung in 8/2020 but quitted it in 6/2021 or 7/2021.  She changed to work in Tsimshatsui in 9/2021.  The Mother alleged the current employer allowed her to have more personal time so that she could render care and supervision to the Child whenever she was released from work.  To certain extent, the Mother’s involvement and support on the Child’s caring would also be varied in accordance with her employer’s flexibility indeed.  Besides, while the Mother’s initial plan for renting separate accommodation for the Child by the Father was found infeasible, the Child appeared to be still in need of living in PBCV continuously or otherwise, going to the Philippines with the mother.

45. For the Father, he was always ready and eager to reunite with the Child so that the girl would resume her life pattern and living condition as usual as far as possible.  The father promised to find a part-time helper or domestic helper to assist the child supervision during the Child’s after school to his home return after work by 7:00 pm.  Considering that the Child would be likely also engaged by some of her after-school activities once she left PBVC, it was reasonable to predict that this time-gap on the Child’s caring problem could be within the ability of the father to manage.

46. Comparatively, the Father’s proposal was much more feasible to meet the Child’s need for a stable and constant care support. It was understood that the Mother, being alone in HK with the only daughter, it would be distressed and felt insecure towards the suspected maltreatment incident in 9/2020.  Nevertheless, during the MDCC held on 25.9.2020, all members concluded it was not a suspected sexual abuse case.

47. For the Child, she was impressed to be a mature, understanding and sensible teenage girl. She always kept herself in good behavior and maintained harmony relationship with both parents. She clearly expressed her view and readiness to be under the care of the father. She considered the father was a reliable parent and was supportive in her guidance and academics. Further, the Child repeatedly revealed her strong unwillingness to be under care in PBCV as well as the Philippines during this adjournment period.

48. In general, it is in the best interests of the child to involve both parents in the important affairs of the child.  However, in a situation where both parents have sharp different view in custody, and are the lack of mutual trust and effective communication, it has concern on whether the parties are able to reach any reasonable or sensible compromise regarding the welfare of the Child for the time being.  In view of such, making a sole custody would be a viable option at the present stage.

49. Lastly, the child is in need of stable environment and relationship with the parents for healthy growth.  The parents should learn to let go of the past unpleasant experiences, rebuild trust and communication to work for the best interest of the child.  Taking all the information into consideration, for the best interest of the Child, the Social Work Officer would recommend the following:

(i) Sole custody to the father;

(ii)  Care and control to the father; and

(iii) Reasonable access to the mother.

46.In the report dated 25 May 2022, Ms Tsang remarked and recommended as follows:

Remarks and Recommendation

24.  Upon the interim order made on 28.10.2021, it was appreciated that both parents have supported the Child for her leaving from PBCV.  The parents exhibited their genuine love and concern to the daughter whereas the Child also reflected harmonious relationship with her parents during the adjournment period.  For the interim access arrangement, despite disputes have raised at times, the overall condition was considered to be smooth that the Father was able to have regular visits to the Child whereas the Child also treasured the visitation with the father.

25.  Current investigation reflected that both the Mother and the Father failed to have smooth progress in handling the Child’s welfare during the adjournment period. As observed, the mother still persistently expressed lots of unresolved mistrust and anger towards the father which also resulted for the broken communication between the parents in the past year.  It appeared that there was still a long road for the parents to build-up trust or accept co-parenting on the girl’s custody matters. Despite the Mother currently revealed no plan to bring the Child to the Philippines with her, her care plan for ensuring a stable upbring environment of the girl in HK was subject to varying due to her employment condition in HK. Comparatively, the father was observed to be more capable of securing a stable and home care condition for the girl.  While there is no significant change on their views as well as Social Work Officer’s recommendations regarding the custody and care and control of the Child as elaborated in the last Social Investigation Report submitted to court on 15.10.2021, the parents should learn to stop their ongoing disputes and confrontation with each other, and for the best interest of their daughter, secured the Child with a stable and healthy growth in the long run.

47.In the above reports, Ms Tsang recommended that the Father do have custody, care and control of the Child and the Mother do have reasonable access.  At trial, Ms Tsang was shown various materials, including WhatsApp messages, containing records of the Father’s impolite, abusive, offensive, violent words and behavior that Ms Tsang was not previously made aware of.  Having gone through those materials, during cross-examination, Ms Tsang stood by the recommendations she made in her reports.

Overally, what are the arrangements in the best interests of the child?

Sole Custody / joint custody

48.Counsel for the Father refers the court to PD v KWW[3] where the Court of Appeal stated: -

52. Today, although there has been no change in our law similar to many other common law jurisdictions, orders of joint custody are in no way exceptional.  This is because it is accepted that, in principle, such orders are in the interests of children.

53. In all but the most exceptional circumstances, the effect of divorce on the children of the marriage, especially children of tender years, is deeply felt.  In all but the most exceptional circumstances, such children desire that they should continue to be protected and guided by both parents.  The case before us is an example.

54. In the result, in the best interests of the child, the fact that, as a result of the breakdown of the marriage, relations between the parents are strained is not of itself a reason to refuse to make a joint order of custody.  Nor is the fact that the parent to be given care and control does not agree.  Such orders look to the future.  They will govern a limited area of exchange between the parents, albeit one of the greatest importance.

55. Accordingly, the issue for the judge is whether, with the court proceedings concluded, it is reasonably anticipated that the parents will be able to agree on the questions of importance that will determine the upbringing of their child, both recognising that, as difficult as it may be for them, this process of co-operation is in the best interests of the child.

56. In determining this issue, the judge is entitled to proceed on the presumption that competent, loving parents possessed of sufficient objectivity to be able to make rational decisions in the interests of the child will be able to co-operate with each [other] concerning matters of importance in the interests in the upbringing of the child.

57. At all times, of course, the welfare of the child remains the first and paramount consideration.  As this Court has recognised (see, for example, Y v P [2009] HKFLR 308), there may be occasions when the ability of the parents to reach any rational accord in respect of important matter concerning the upbringing of their child is so deeply undermined that to compel attempts at cooperation will not protect the interests of the child but only leave the child more vulnerable.

49.In the closing submission for the Mother in reply dated 24 February 2023, it is submitted that whilst it has always been the Mother’s case that she should be granted sole custody, a grant of joint custody would, for the reasons stated in the closing submission for the Mother, be preferable over granting sole custody to the Father.

50.It is the Father’s submission that joint custody is not a workable option.

51.In the report dated 15 October 2021, Ms Tsang said: -

48.  In general, it is in the best interests of the child to involve both parents in the important affairs of the child.  However, in a situation where both parents have sharp different view in custody, and are the lack of mutual trust and effective communication, it has concern on whether the parties are able to reach any reasonable or sensible compromise regarding the welfare of the child for the time being.  In view of such, making a sole custody would be a viable option at the present stage.

52.In the report dated 26 May 2022, Ms Tsang said: -

25. Current investigation reflected that both the Mother and the Father failed to have smooth progress in handling the Child's welfare during the adjournment period. As observed, the mother still persistently expressed lots of unresolved mistrust and anger towards the father which also resulted for the broken communication between the parents in the past year.  It appeared that there was still a long road for the parents to build-up trust or accept co-parenting on the girl’s custody matters. … there is no significant change on their views as well as Social Work Officer’s recommendations regarding the custody and care and control of the Child as elaborated in the last Social Investigation Report submitted to court on 15.10.2021.

53.After having carefully considered all evidence, I accept that this is a case that the ability of the parents to reach any rational accord in respect of important matters concerning the upbringing of the Child is so deeply undermined that it is in the best interest of the Child to make a sole custody order.

Care, Control and Access

54.Given the findings made above it seems to me it is appropriate in all the circumstances of this case for care and control of the Child to be vested in the Father.

55.Neither party has put forward a proposal for the Mother's access for the court’s consideration. In principle, I regard that there should be a scheme in place that is generous, flexible and will permit her ad hoc overnight stay with the Child.  For the time being, I tentatively order that there be reasonable access to the Mother.  The Mother may apply to this court for further directions with respect to access.

56.In the meantime, it is directed that the Father’s undertaking to pay interim maintenance to the Mother for the benefit of the Child at $2,000 per month do continue until further order of the court.

57.I therefore make the order that custody, care and control of the Child be granted to the Father with reasonable access to the Mother.

58.This being a child matter, I make order nisi that there be no order as to costs of the present application including reserved costs.  The order nisi becomes absolute 14 days after the order is made unless a party has applied to the court for varying the same.